THE  Constitutional  beginnings 


NORTH  Carolina 


JOHN  SPENCER  BASSETT 


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THE  CONSTITUTIONAL  BEGINNINGS  OF 
NORTH  CAROLINA 

(1663-1729) 


JOHNS  HOPKINS  UNIVERSITY  STUDIES 

IN 

Historical  and  Political  Science 

HERBERT  B.  ADAMS,  Editor 


History  is  past  Politics  and  Politics  present  History.— Freeman 


TWELFTH  SERIES 
III 


THE  CONSTITUTIONAL  BEGINNINGS  OF 
NORTH  CAROLINA 

(1663-1729) 

By  John  Spencer  Bassett 

Fellow  in  ffistori/.  J.  If.  C. :    Professor  Elect  of  Higiory  in  Trinity  College, 
Sorth  Carolina 


A    DISSERTATION    PRESENTED    TO    THE   BOARD    OF   UNIVERSITY   STUDIES   OF 

THE  JOHNS   HOPKINS   UNIVERSITY   FOR   THE  DEGREE  OF 

DOCTOR   OF   PHILOSOPHY. 


baltimore 
The  Johns  Hopkins  Press 

PUBLISHED    MONTHLY 

March,  1894 


0.  H.  HILL  LIBRARY 
N.  CX  STATE  UWIVERirrV 


."OPTBIGHT,  1894,  BT  THE  JoHKB  HOPKUTS  PBKSB. 


THK  rKllCDK.KWAU)  CO.,  PBQrTZKS, 
SAXTTMOEK. 


PREFATORY  NOTE. 

In  presenting  this  work  to  the  pubHc  I  desire  to  acknow- 
ledge my  indebtedness  for  assistance — either  in  the  shape  of 
criticisms  or  in  the  form  of  books  and  other  material  which 
were  lent  me — from  Dr.  K.  P.  Battle,  Professor  of  History 
in  the  University  of  North  Carolina;  Chief  Justice  James  E. 
Shepherd,  of  the  Supreme  Court  of  North  Carolina;  Asso- 
ciate Justice  A.  C.  Aver)',  of  the  Supreme  Court  of  North 
Carolina  and  Professor  of  Law  in  Trinity  College  (N.  C); 
and  Hon.  John  Manning,  Professor  of  Law  in  the  University 
of  North  Carolina.  These  gentlemen,  by  their  efforts,  and 
many  others  by  their  kind  interest,  have  materially  aided 
me. 

J.  S.  B. 

February  20,  i8g4. 


1571t>2 


CONTENTS. 


Chapter  I. — Introduction:  General  features  of  the  Proprietary 
Period  ;  Development  of  Civil  Liberty  ;  Economic  and  Social 
Conditions,    p.  9. 

Chapter  II.  —  The  Source  of  the  Gonstitution  of  North  Carolina. 
Section  /.—The  King's  Idea  of  a  Colony.  Section  II. — The  Pala- 
tinate Franchise.  Section  III. — The  County  Palatine  in  America, 
p.  17. 

Chapter  III. — The  Proprietors  and  the  Constitution.  Section  I. — The 
Legal  Status  of  the  Lords  Proprietors.  Section  II. — The  Proprie- 
tors' Theory  of  Government  —  The  Fundamental  Constitutions, 
p.  30. 

Chapter  Vf.—  Th^  Analysis  of  the  Constitution.  Section  I. — The 
Lords  Proprietors.  Section  II. — The  Governor.  Section  III. — The 
Council.  Section  IV. — The  Assembly.  Section  V. — The  Judicial 
System.  Section  VI. — Finances.  Section  VII. — Miscellaneous 
Officers,     p.  44. 


SOURCES  OF  INFORMATION. 

"  The  Colouial  Records  of  North  Carolina,"  edited  by  Col.  W.  L. 
Saunders;  Vols.  I.,  II.  and  III.  This  has  been  our  chief  source. 
In  its  volumes  we  have  found  letters  of  instruction,  reports  of  offi- 
cers, laws,  court  records,  and  various  other  documents.  The  nature 
of  the  work  in  hand  has  rendered  it  necessary  to  depend  more  on 
these  materials  than  on  the  several  narrative  histories  of  the  State, 
although  valuable  general  knowledge  has  been  gotten  from  the 
latter. 

"Laws  of  North  Carolina":  printed  by  James  Davis.  1752. 

•'History  of  North  Carolina":  F.  L.  Hawks;  2  vols.  (1584-1729). 
Volume  II.  of  this  work  deals  with  the  Proprietary  period  and  is 
without  doubt  the  best  treatment  of  the  subject  that  has  appeared. 

"Political  Annals  of  the  United  Colonies":  George  Chalmers; 
1780.  This  work  was  based  on  original  authorities,  but  contains 
little  for  us  that  cannot  be  found  in  better  shape  in  the  "  Colonial 
Eecords."  Its  chapter  on  Carolina  is  reprinted  in  Carroll's  "His- 
torical Collection  of  South  Carolina."  Vol.  II. 

On  Durham  County  : 
Surtees  :  "  History  of  the  County  Palatine  of  Durham." 
Publications  of  the  Surtees  Society,   particularly   Vols.    32.    82. 
and  84. 

We  have  also  consulted  in  a  general  way  : 
Williamson  :  '•  History  of  North  Carolina." 
Martin  :  "  History  of  North  Carolina." 
Winsor  :  "  Narrative  and  Critical  History,"  Vol.  V..  in  which  is 

reprinted  Rivers'  sketch  of  the  early  history  of  Carolina. 
Doyle  :  "  English  Colonies  in  America." 
John  Lawson  :    •"  Exact  Description  of  the  Natural  History  of 

North  Carolina."'  1709. 
Brickell:  "Natural  History  of  North  Carolina,"  1737. 
Weeks:  "  The  Religious  Development  of  North  Carolina."  J.   H. 

Univ.  Hist.  Studies.  Tenth  Series. 
Howard  :  "  Local  Constitutional  History  of  the  U.  S." 
MacMahon  :  "  History  of  Maryland." 

Other  works  have  been  used  for  specific  purposes.  These  are 
indicated  in  footnotes,  which,  it  is  hoped,  will  be  found  as  ample  as 
is  desirable. 


Introduction. 


CHAPTER  I. 
Introduction. 

The  Proprietary  government  of  North  Carolina  began  in 
1663,  with  the  royal  grant,  and  ceased  in  1729,  with  the  sale 
of  the  entire  property  to  the  Crown.  The  eight  noblemen 
who,  by  the  royal  favor,  were  constituted  its  "  true  and  abso- 
lute lords  and  proprietors,"  proceeded  in  1665  to  oudine  the 
plan  by  which  they  proposed  to  administer  the  civil  affairs 
of  their  property/  Their  design  was  to  create  for  the  time 
certain  distinct  governments,  each  directly  dependent  on  the 
Proprietors.  These  they  designated  *' counties.''  Three 
counties  were  actually  organized.  They  were:  (i)  Albemarle, 
a  region  north  of  Albemarle  Sound,  and  containing  1600 
square  miles;  (2)  Clarendon,  the  district  to  the  south  of  the 
mouth  of  the  Cape  Fear;  and  (3)  Craven,  the  territory  imme- 
diately south  of  Cape  Romaine.'  Over  each  county  was 
placed  a  Governor,  with  the  necessar}^  administrative  asso- 
ciates. 

With  Craven  and  Clarendon  counties  we  have  here  noth- 
ing to  do;  for  the  one  lay  wholly  without  the  region  that  later 
became  North  CaroUna,  and  the  other,  though  within  that 
territory,  was  soon  abandoned,  tliat  its  inhabitants  might 
unite  with  those  of  Craven  count\'  to  build  up  the  more 
prosperous  colony  of  South  Carolina. 

Our  inquiry  lies  particularly  with  Albemarle  count\'.  This 
government,  though  at  first  the  smallest  of  the  three,  gradu- 
ally extended  its  authority  over  the  neighboring  districts, 
until  at  the  end  of  the  seventeenth  century  it  became  kno\\Ti 
as  North  Carolina,  and  embraced  all  that  part  of  the  province 
that  lies  north  and  east  of  Cape  Fear.  The  original  county 
was  divided  into  precincts,  and,  along  with  other  counties 


Ck)l.  Records  of  North  Carolina,  I.,  79.  *76id.,  I.,  93. 


10      Constitutional  Beginnings  of  North  Carolina. 

that  were  subsequently  created  on  the  same  plan,  continued 
to  exist  till  1738,  when  the  larger  division  was  abolished,  and 
in  its  place  the  old  precinct,  which  was  now  known  as  a 
county,  became  the  regular  local  administrative  and  judicial 
unit.' 

In  1 691  the  Proprietors  seem  to  have  thought  that  their 
progress  in  planting  colonies  was  sufficient  to  warrant  a 
union  of  the  several  settlements  into  one  government.  They 
accordingly  appointed  for  the  whole  colony  one  Governor, 
known  as  the  Governor  of  Carolina,  who,  with  one  Council 
and  one  Assembly,  was  to  direct  the  government  of  all  Caro- 
lina.* 

This  was,  doubtless,  a  previously  arranged  plan  for  gradu- 
ally bringing  into  use  the  Fundamental  Constitutions.  It 
certainly  took  a  step  toward  the  general  provisions  of  that 
instrument.  The  only  practical  result  was  the  division  of  the 
province  into  North  and  South  Carolina-  Whatever  irregu- 
larly defined  counties  might  have  existed  before  this,  they 
were  now  integrated,  not  into  one,  but  into  two,  govern- 
ments.' It  was  the  large  tract  of  unsettled  country  lying  be- 
tween Charleston  and  Albemarle  Sound  that  caused  this  divi- 
sion. On  second  thought,  the  Proprietors  agreed  that  if 
Albemarle  found  it  inconvenient  to  send  delegates  to  the 
Assembly  at  Charleston,  the  Governor  might  establish  in  the 
northern  county  a  separate  government,  with  such  powers  as 
he  saw  fit  to  confer.*  Thus  a  Deputy  Governor,  appointed 
by,  and  reporting  to,  the  Governor  of  Carolina  became  the 
head  of  the  government  in  Albemarle. 

This  state  of  affairs  continued  from  1691  to  1710.  There 
being  no  direct  communication  between  the  North  Carolina 


'  Williamson :  Hist,  of  N.  C,  I.,  163 ;  also  Laws  of  1752,  pp.  86,  90. 

«Col.  Recs.  of  N.  C,  I.,  373-380. 

'The  Proprietors  claimed  that  there  were  four  counties:  Albe- 
marle, Craven,  Berkeley,  and  Colleton.  Only  Albemarle  was  in 
North  Carolina,  and  in  South  Carolina  only  Craven  had  been  defin- 
itely organized.     See  Col.  Recs.  of  N.  C,  I.,  377. 

*  See  Col.  Recs.,  I.,  380-1.  Chalmers  says,  rather  disparagingly, 
thatNorthCarolina"'refused  to  join  in  legislation  with  their  southern 
neighbors."    Chalmers  :  Hist,  of  the  Revolt,  I.,  398. 


Introduction.  11 

authorities  and  the  Proprietors,  we  have  but  scant  records 
for  the  period.  One  result  is  observable,  however.  The 
people,  left  largely  to  themselves,  gained  a  greater  influence 
in  the  government.  The  popular  influence  began  to  over- 
master the  Proprietary  interest,  and  the  colony  became 
for  a  short  time  peaceful  and  happy. 

In  1710  the  Proprietors  resolved  that  "a  Governor  be 
made  for  North  Carolina  independent  of  the  Governor  of 
South  Carolina."*  This  action  is  in  danger  of  being  spoken 
of  as  the  separation  of  North  and  South  Carolina;  but  there 
was  never  any  organic  union  between  the  two  colonies. 
When  the  Governor  of  Carolina  was  instructed  to  appoint  a 
Deputy  Governor  for  North  Carolina  he  was  directed  to 
appoint  a  similar  officer  for  the  southern  colony.  These  two 
were  therefore  entirely  co-ordinate  in  authority.  From  the 
fact  that  the  Governor  of  Carolina  usually  appointed  his 
deputy  for  North  Carolina  and  lived  in  more  populous 
and  more  cultured  South  Carolina,  which  he  often  ruled  in 
person,  the  idea  has  sometimes  appeared  that  the  Governor 
of  the  northern  colony  was  dependent,  not  on  the  Governor 
of  Carolina,  but  on  the  Governor  of  South  Carolina. 

From  1 71 2,  the  time  of  the  settling  of  affairs  under  tlie 
revived  independent  Governor,  the  colony  remained  pros- 
perous and  peaceful.  The  Lords  relaxed  their  design  of 
making  a  constitution  for  the  people  and  allowed  them  prac- 
tically to  devise  their  own  laws.  That  faction  of  the  inhabi- 
tants which  favored  the  Proprietors  managed  to  hold  the 
Assembly,  and  by  a  wise  use  of  their  power  brought  about 


'  There  is  something  unexplained  about  this  event.  Our  quotation 
is  taken  from  the  minutes  of  a  meeting  of  the  Proprietors  (Col. 
Recs.,  I.,  750).  This  occurred  Dec.  7,  1710.  Eight  days  later  the 
Governor  of  Virginia  addresses  Hyde  as  Governor  (lb.,  I.,  750). 
Hyde  must  have  been  recognized  in  the  colony  before  he  was 
appointed  by  the  Lords  (cf.  Hawks,  II.,  517).  Hyde  seems  to  have 
depended  on  a  commission  from  Tynte.  the  Governor  of  Carolina, 
who  dying  at  this  time,  the  new  Governor  was  obliged  to  have  a 
commission  from  the  Proprietors,  which  was  issued,  Jan.  24,  1712 
(Col.  Recs.,  I.,  841).  Hawks  adopts  the  latter  date  as  the  beginning 
of  Hyde's  term  (Hist,  of  N.  C,  II.,  493). 


12      Constitutional  Beginnings  of  Xorth  Carolina. 

some  good  laws  and,  until  just  before  the  close  of  the  Pro- 
prietan-  period,  much  good  feeling. 

With  regard  to  the  development  of  civil  libert>-,  the  results 
of  our  investigation  fall  into  three  stages.  These  are:  (i)  the 
period  of  infancy,  (2)  the  period  of  physical  stniggle,  and 
(3)  the  period  of  constitutional  reform. 

The  period  of  infancy  is  only  important  as  gi\'ing  a  start- 
ing-point It  was  co-existent  with  the  system  of  government 
organized  under  the  Concessions  of  1665,^  and  was  super- 
seded in  1670  by  those  constitutions  which  were  tempor- 
arily to  take  the  place  of  the  Fimdamental  Constitutions.  In 
the  minds  of  the  Proprietors  the  Concessions  themselves  were 
doubtless  intended  to  be  temporary-,  but  there  is  no  evidence 
that  any  such  intentions  were  communicated  to  the  settlers. 
The  leading  characteristic  of  the  period  is  the  tutelar  nature 
of  government  The  Proprietan.-  influence  was  at  its  height 
and  from  this  state  of  freedom,  or  non-freedom,  the  gro'vsth 
of  civil  liberiv'  began.' 

The  second  period,  however,  is  of  more  importance.  All 
States  in  which  libert\-  has  proceeded  by  any  regular  growth 
from  authorit)'  to  equality  have  begun  the  process  with  a 
period  of  physical  struggle.  Xorth  Carolina  was  no  excep- 
tion to  this  rule.  From  1670  to  1712  her  people,  according 
to  Colonel  Saunders,  drove  from  office  six  of  their  fourteen 
Governors.*  During  this  time  there  were  two  actual  rebel- 
lions, and  the  inhabitants  were  kept  in  a  constant  state  of 
unrest  Governor  Spotswood,  of  \''irginia,  remarked,  rather 
spitefully,  that  the  people  were  so  used  to  turning  out  their 
Governors  that  they  thought  they  had  a  right  to  do  so.* 

The  first  of  these  troubles,  the  "  Culpeper  Rebellion," 
came  soon  after  the  arrival  of  the  Fundamental  Constitutions, 


'CoL  Eec5..  I..  79. 

-  The  Proprietor?"  government  was  definitely  established  in  Albe- 
marle in  1664.  about  three  months  before  the  Concessions.  Before 
this  there  had  been  a  few  people  there,  mostly  Virginians,  who  held 
their  lands  from  the  Virginia  government  or  from  the  Indians. 

^Col.  Recs..  II..  p.  X.  ^Ibid..  II..  p.  x. 


Introduction.  13 

and  it  has,  therefore,  been  customar)-  to  say  that  the  troubles 
of  the  period  aros^  from  an  attempt  to  enforce  that  system. 
This  appears  not  to  be  true,  and  for  two  reasons:  (i)  The 
Proprietors  did  not  attempt  to  enforce  tlie  Constitutions  as 
such  in  North  CaroHna;  and  (2)  whenever  there  is  trouble 
there  is  always  assigned  a  sufficient  cause — and  a  cause 
which  has  nothing  to  do  with  the  Constitutions.  Not  one 
fact,  but  several  facts,  caused  the  various  struggles  of  the 
people  against  their  rulers.  The  tliree  most  marked  griev- 
ances were  the  attempt  to  enforce  the  navigation  laws,  tlie 
scheme  to  introduce  the  established  church,  and  dishonest 
or  inefficient  Governors.  To  tliis  should,  perhaps,  be  added 
a  certain  amount  of  demagoguen.-,  an  element  which  is  al- 
ways plentiful  where  an  oppressed  people  are  ignorant  and 
for  a  considerable  part  of  their  time  unemployed. 

The  excesses  of  this  period  brought  the  colony  the  reputa- 
tion of  being  lawless.  This  imputation  is  more  easily  jus- 
tifid  than  denied.  The  people  had  real  grievances.  Unused 
to  the  formalities  of  law,  and,  under  the  Proprietors'  system 
of  government,  having  but  little  opportunity  for  a  legal 
redress  of  g^evances,  they  struck  for  relief  by  what  seemed 
to  them  the  nearest  and  surest  method — by  physical  force. 
While  it  cannot  be  denied  that  their  resistance  largely 
influenced  the  liberal  settlement  of  the  government  in  the 
Revisal  of  171 5,  still  it  must  be  admitted  that  relief  would 
have  come  sooner  and  with  less  discredit  to  the  fame  of  the 
province  had  the  difference  been  fought  out  in  a  constitu- 
tional manner. 

The  third  period  may  be  said  to  have  begun  with  the  settle- 
ment of  internal  affairs  after  the  "  Carey  Rebellion  *' — say 
about  the  end  of  171 1.  It  ended,  so  far  as  this  work  is  con- 
cerned, in  1729.  It  was  a  period  of  constitutional  struggle. 
The  marked  improvement  on  the  former  period  was  brought 
about  by  a  union  of  two  causes.  First,  the  people  had  come 
to  see  the  futility  of  employing  force.  They  obser\'ed  that 
such  tactics  had  but  put  their  opponents  into  office  and  had 
weakened  the  colony  against  Indians.    Secondly,  the  Pro- 


14      Constitutional  Beginnings  of  North  Carolina. 

prietors  on  their  part  came  to  adopt  a  more  liberal  policy  to- 
wards tlie  settlers.  They  allowed  the  code  of  171 5  to  take 
the  place  of  the  shadowy  and  indefinite  system  of  1670  which 
they  had  vaguely  embodied  in  their  instructions  to  successive 
Governors.  Thus  they  themselves  were  largely  removed 
from  the  administration  of  affairs,  and  their  Governors,  espe- 
cially Eden,  seem  to  have  been  inclined  to  get  along  with  the 
people  as  easily  as  possible. 

As  a  consequence,  all  struggle  ceased  for  more  than  a  de- 
cade, and  when  it  did  re-appear  amid  the  confusion  of  the 
closing  days  of  the  Proprietar}-  regime,  it  was  methodical 
and  constitutional.  The  Assembly's  calm  but  firm  manner  of 
asserting  its  rights  at  this  period  suggests  all  tlie  dignit}'  of 
the  English  Parliamentar}-  battles  of  the  seventeenth  century. 
The  struggle  thus  begim  was  carried  over  to  the  period  of 
the  royal  prov-ince,  and  was  not  finally  allayed  till  North 
Carolina  became  a  State. 

There  is  one  fact  in  the  early  history  of  North  Carolina 
that  makes  it  unique  among  all  the  Southern  colonies.  That 
fact  lies  in  the  economic  conditions  of  the  early  settlement. 
Two  forces  tended  to  keep  it  a  poor  colony,  thus  giving  a 
turn  to  its  later  character.  In  the  first  place,  it  was  the  policy 
of  the  Proprietors  to  grant  the  land  in  small  holdings,  six 
hundred  and  forty  acres  being  usually  the  maximum  quan- 
tity'. Only  a  few  persons,  the  hereditarv^  nobility  for  the 
most  part, — and  in  Nortli  Carolina  tliese  were  rare  indeed, — 
could  acquire  larger  continuous  tracts.^    By  this  means  land- 


'  As  early  as  1669  the  Assembly  passed  a  law  which  for  five  years 
restricted  land-holdings  to  660  acres.  This  law  did  not  extend  to 
Proprietors.  Landgraves  and  Caciques.  It  was  made  to  prevent  dis- 
persion of  the  inhabitants  over  a  very  large  area.  (See  Col.  Recs.. 
I..  186.)  The  amount  a  man  might  then  take  up  without  purchase 
was  60  acres  for  himself  and  50  or  60  acres  for  each  person  he 
brought  in  with  him.  Later  it  was  50  acres,  without  distinction, 
for  each  person  that  came  in.  One  musttherefore  be  a  considerable 
man  to  secure  at  any  time  more  than  1000  aci'es  {lb..  I.,  182).  In 
1709.  if  not  earlier,  the  Proprietors  declared  that  no  more  than  640 
acres  should  be  sold  to  one  man  without  their  written  permission 
(lb..  I..  706.  also  I..  846.  and  II..  457).  In  1702  it  had  been  restricted 
to  500  acres  {lb..  I..  556).  Brickell  says  it  was  640  acres  in  1737 
("Natural  Hist,  of  N.  C.,"'  p.  12). 


Introduction.  15 

owners  were  not  powerful.  In  Virginia  and  in  South  Caro- 
lina, where  it  was  the  custom  to  make  large  grants,  a  pre- 
dominant landed  aristocracy  soon  sprang  into  existence. 
Situated  in  the  midst  of  slaveholding  States,  North  Carolina 
has  not  entirely  escaped  the  influence  of  its  environment.  It 
has  always  been  distinctly  Southern,  but  only  mildly  aristo- 
cratic. It  has  at  no  time  been  dominated  by  a  few  powerful 
families. 

In  the  second  place,  the  earliest  settlements  in  the  State 
were  in  that  part  where  uncertain  harbors  prevented  a  direct 
trade  with  England.  The  settlers  were  thus  left  to  an  un- 
profitable commerce  with  the  older  communities  in  America. 
No  extensive  industry  became  established.  The  people  were 
isolated,  and  produced  but  little  more  than  they  could  con- 
sume. Thus  this  colony,  with  perhaps  the  most  fertile  soil 
on  the  Atlantic  coast,  lagged  behind  in  material  prosperity. 

To  these  two  economic  facts  we  must  add  a  fact  of  a  social 
nature,  before  our  view  can  be  considered  complete.  North 
Carolina  was  often  turbulent.  Whether  it  was  for  good 
reasons  or  for  bad,  there  was  frequent  social  disorder  within 
its  borders.  As  has  been  said,  bad  administration  was  to 
some  extent  responsible  for  this,  but  back  of  this  cause  lay 
the  condition  of  the  masses.  There  was  little  religious 
instruction  and  less  education.  There  was  not  a  printing 
press  in  the  province.^  Governor  Burrington's  statement 
in  1732,  that  there  was  not  in  the  province  "  a  sufficient  num- 
ber of  gentlemen  fit  to  be  councillors,  neither  to  be  Justices 
of  the  Peace,  nor  officers  in  the  militia,"'  must  be  understood 
as  a  partisan  utterance,  yet  it  was  not  without  a  color  of 
truth.  The  Virginians  charged  repeatedly  that  North  Caro- 
lina, by  shielding  immigrants  from  prosecution  for  debts 
contracted  before  coming  into  the  colony,  became  an  asylum 
for  the  vicious  classes,  and  it  cannot  be  denied  that  such  a 
law  would  bring  some  undesirable  citizens  into  the  colony. 


'  The  first  printing  press  was  introduced  in  1749.     "Wheeler  :  Hist, 
of  N.  C,  I.,  112.  and  Martin :  Hist,  of  N.  C,  II.,  54. 
'Col.  Rec8.,III.,  332-3. 


16      Constitutional  Beginnings  of  North  Carolina. 

Yet  that  does  not  seem  sufficient.  It  is  more  probable  that 
the  economic  disadvantages  of  small  estates  and  of  the  lack 
of  commerce  induced  the  better  class  of  immigrants,  those 
who  possessed  means,  to  go  to  Virginia  or  to  South  Caro- 
lina, tlius  leaving  North  Carolina  for  less  substantial  settlers. 


The  Source  of  the  Constitution.  17 


CHAPTER  II. 

The  Source  of  the  Constitution  of  North  Carolina. 

Section  i. —  T/ie  Kings  Idea  of  a  Colony. 

In  the  private  note-book  of  Henry  VII.  of  England  appears 
this  entry:  "  loth  August,  1497.  To  him  that  found  the  new 
isle,  £10."  This,  it  is  supposed,  refers  to  John  Cabot's  dis- 
covery of  the  American  continent.  If  the  assumption  be 
correct,  it  means  that  the  frugal  king,  at  the  moderate  ex- 
pense of  ten  pounds,  gained  for  his  private  property  the 
entire  Atlantic  coast  from  Labrador  to  Florida. 

If  to-day  a  region  of  unsettled  country  suddenly  became 
American  soil,  we  should  expect  it  to  be  received  and  granted 
out  to  settlers  in  the  name  of  the  American  people.  But  in 
regard  to  Cabot's  discovery  an  entirely  different  method 
was  followed.  It  was  a  doctrine  of  the  English  law  that  all 
land  not  otherwise  occupied  was  the  property  of  the  king; 
that  is  to  say,  it  was  Crown  Land,  or  terra  regis,  as  the  legal 
phrase  ran.  The  king  could  dispose  of  such  land  as  he  saw 
fit.  As  a  matter  of  fact,  his  American  possessions  were  di- 
vided into  what  was  afterward  known  as  colonies,  and  each 
of  these  was  settled  in  one  of  three  ways.  Thus  there  came 
to  be  proprietary,  charter,  and  royal  colonies. 

The  proprietary  colony  was  the  method  of  colonization 
that  first  suggested  itself  to  the  English  sovereign.^  This 
meant  that  some  individual  or  corporation  received  the  lands 
it  was  intended  to  populate,  and  with  them  the  right  to  main- 
tain the  government  over  the  inhabitants  who  settled  there. 
The  Proprietary  took  the  position  of  the  king  in  reference  to 


'  Gilbert  and  Raleigh  received  their  patents  as  proprietaries.  Vir- 
ginia began  under  such  a  system  of  royal  interference  that  the 
government  was  neither  proprietary  nor  royal,  but  within  three 
years  went  into  the  hands  of  a  company  that  was  really  a  proprie- 
tary.   See  Bancroft,  Part  I.,  chaps.  VI.,  VII. 


D.  H.  HILL  LIBRARY 
North  Carolina  State  College 


18      Constitutional  Beginnings  of  North  Carolina. 

the  colony.  He  was  responsible  to  no  one  except  to  his 
sovereign.  It  is  interesting  to  note  that  this  institution  was 
analogous  to  the  old  mark  and  county  palatine,  by  which 
early  Germanic  emperors  had  held  their  turbulent  frontiers. 
Similar  conditions  in  the  sixteenth  and  seventeenth  centuries 
suggested  a  similai*  method  of  meeting  them. 

The  cliartcr  colonies  existed  in  New  England.  Hither  tlie 
king  allowed  a  number  of  Dissenting  congregations  to  come, 
in  order  that  they  might  worship  God  as  they  chose.  These 
colonies  cannot  be  said  to  be  embraced  in  the  colonizing 
scheme  of  the  English  kings.  So  far  as  the  monarch  was 
concerned,  they  existed  by  sufferance.  They  had  their  lib- 
erties guaranteed  by  a  royal  charter,  and  were,  in  many 
respects,  closely  analogous  to  the  English  towns  on  the  royal 
domain. 

The  king  held  a  kind  of  reversion  on  both  of  these  kinds 
of  colonies.  If  it  happened  that  the  conditions  on  which  they 
were  then  held  were  violated,  the  king  might  sue  for  and 
recover  possession  of  them.  It  did  come  about  that  on 
various  pretexts  the  Crown  succeeded  in  getting  the  courts 
to  remit  into  its  hands  several  of  the  colonies,  which  were  ac- 
cordingly known  as  royal  provinces.  It  will  be  noticed  that 
this  method  was  not  in  favor  as  a  means  of  planting  colonies. 
There  is  not  one  of  the  English  planted  colonies  in  the  limit 
of  the  present  United  States  in  regard  to  which  the  king  can 
be  considered  to  have  said  t6  himself:  "  Go  to,  I  will  make 
me  a  colony."  He  chose  rather  to  make  some  other  person's 
colony  his  o%vn. 

Let  us  ask  now:  "Whence  came  the  constitutions  of  these 
colonies?"  Here  writers  are  by  no  means  unanimous.  One 
class  holds  that  our  institutions  were  taken  bodily  from  our 
English  home;  another  claims  that  they  were  a  product  of 
the  American  soil;  while  still  another,  taking  a  middle  view, 
think  that  they  represent  a  complex  process  in  which  selec- 
tion and  growth  both  appear. 

A  mistake  that  has  too  often  been  made  in  this  connection 
— as  elsewhere,  when  writing  of  American  institutions — is  to 


The  Source  of  the  Constitution.  19 

look  at  the  whole  field  from  the  standpoint  of  the  New  Eng- 
land colonies.  These  colonies,  left  largely  to  themselves, 
had  ample  opportunity  to  develop  their  institutions  in  their 
own  way ;  and,  in  truth,  their  constitutions  were  more  charac- 
teristically American,  in  our  present  use  of  the  term,  than 
those  of  any  other  colonies.  Outside  of  New  England  the 
forms  of  government  were,  in  most  cases,  sent  in  the  first 
instance  from  England.  They  came  from  men  who,  for  tlie 
most  part,  had  never  been  in  America,  and  who,  in  many 
cases,  had  purposes  m  view  which  were  foreign  to  the  pur- 
poses of  the  colonists. 

If  we  are  *o  understand  these  constitutions  we  must  re- 
member that  they  were  not  uniform.  Each  Proprietor  had 
his  own  ideas  of  government.  Each  may  be  supposed  to 
have  consulted  existing  models  before  devising  his  own  sys- 
tem. Wise  old  William  Penn  had  been  doing  this  when  he 
wrote  in  the  preface  to  his  "  Frame  of  Government " :  "I 
do  not  find  a  model  in  the  world  that  time,  place,  and  some 
singular  emergencies  have  not  necessarily  altered;  nor  is  it 
easy  to  frame  a  civil  government  that  shall  serve  all  places 
alike."^  This  idea  is  also  well  illustrated  in  the  governments 
of  Maryland  and  of  North  Carolina.  Here  the  two  royal 
charters  were  almost  identical,  and  yet  the  administration 
of  the  provinces  differed  widely.  The  differing  was  due  to 
the  personal  equation  of  the  two  proprietaries. 

With  such  varying  factors  to  be  reckoned  with,  one  cannot 
say  in  any  general  way  where  the  American  institutions 
originated.  All  that  a  cautious  person  will  say  is  that  after 
careful  research  he  thinks  that  the  constitution  of  a  given 
State  originated  in  a  certain  specified  manner. 

So  far  as  North  Carolina  is  concerned,  it  is  the  opinion  of 
the  present  writer  that  its  general  form  of  government  was 
modeled  after  the  English  manorial  organization.  Let  us  ex- 
plain what  we  mean  by  manorial  organization.  There  was 
in  England,  until  the  days  of  modem  reform,  two  local  juris- 

'  Proud  :  Hist,  of  Penn..  I.,  p.  197. 


'\ 

20      Constitutional  Beginnings  of, 'North  Carolina. 

i 

dictions.  On  the  one  hand  was  tfie  authority  of  the  king, 
exerted  through  the  sheriff  in  th^  count\-  and  through  the 
reeve  in  the  township;  on  the  otlier  hand  was  the  authority 
of  the  lord  of  the  manor,  exercised  either  in  person  or  through 
his  steward.  The  one  stood  for  the  people  and  the  people's 
leader,  the  king;  the  other  stood  for  the  land  and  for  the 
land's  owner,  the  lord.  The  one  was  expressed  tangibly  in 
the  jurisdiction  of  the  towTiship  and  of  the  count}';  the  other, 
in  the  private  jurisdiction  of  the  courts  baron  and  leet.  Now 
it  is  tiie  latter  institution  that  we  mean  by  tiie  manorial  or- 
ganization ;  that  is  to  say,  that  system  by  which  the  lord  of  the 
land  was  constituted  the  lord  of  the  civil  affau"  of  those  who 
lived  on  the  land.  And  of  tiiese  two  institutions  it  was,  we 
think,  the  latter  that  was  imitated  by  the  builders  of  the  gov- 
ernment of  Proprietary  North  Carolina. 

But  it  was  not  the  simple  English  manor  that  was  copied. 
It  was,  rather,  the  Count}-  Palatine — in  point  of  authorit}- 
the  highest  form  of  the  manor.  The  most  patent  reason  for 
saying  this  is  a  clause  in  the  royal  grant  itself.  By  this  it 
was  declared  that  the  Proprietors  should  "  have,  hold,  use, 
exercise,  and  enjoy  the  same  [their  privileges]  as  amply,  fully, 
and  in  as  ample  manner,  as  any  Bishop  of  Durham  in  our 
kingdom  of  England  ever  heretofore  had,  held,  used,  or 
enjoyed,  or  of  right  ought,  or  could,  have,  use,  or  enjoy.'" 
It  was  also  provided  that  the  propert}-  should  be  held,  at  an 
annual  rent  of  tsvent}-  marks,  "  as  of  our  manor  of  East 
Greenwich,  in  Kent,  in  free  and  common  socage  and  not  in 
capite,  or  by  knight's  ser\-ice."''  Furthermore,  it  \rill  be  seen 
on  examination  that  when  the  Proprietors  organized  their 
propert)'  they  carried  into  effect  the  features  of  the  Palatinate 
organization.  The  Fundamental  Constitutions,  which  were 
not  enforced,  and  the  ^temporar}'  constitution,  which  was 
enforced,  both  strongly  suggest  the  lord  of  the  manor.  In 
either  case  the  Lords  were  the  source  of  all  real  power.  They 
appointed  their  executive  agents;  their  own  courts  adminis- 

'  Col.  Recs.,  I..  103.  *IUd..  I..  104. 


The  Source  of  the  Constitution.  21 

tered  their  own  justice  or  preserved  the  Proprietors'  peace; 
even  the  Assembly  was  a  kind  of  court-baron  to  consider  the 
welfare  of  tlie  colony.  Its  laws  were  enacted  by  the  Lords 
Proprietors  with  the  advice  and  consent  of  the  Assembly,  but 
certain  restrictions  made  them  practically  the  will  of  the 
Lords. 

There  is  no  better  way  of  understanding  the  County  Pala- 
tine in  America  than  to  examine  the  same  institution  in  Eng- 
land. To  arrive  at  this  we  have  made  an  analysis  of  the 
constitution  of  the  County  Palatine  of  Durham,  which  we 
shall  give  in  our  next  section. 


Section  ii. — T/ie  Palatinate  Franchise.^ 

William  the  Conqueror,  in  order  to  prevent  the  rearing  of 
a  powerful  landed  aristocracy,  had  recourse  to  two  measures: 
(i)  He  took  care  not  to  grant  to  one  nobleman  large  adja- 
cent estates;  and  (2)  he  placed  the  administration  of  each 
shire  in  the  hands  of  the  sheriff,  one  of  his  own  officers. 
There  were,  however,  three  exceptions.  On  the  Scotch  and 
Welsh  borders  and  on  the  southeast  coast,  where  an  army 
from  the  Continent  would  be  likely  to  land,  he  created  large 
political  divisions,  and  placed  one  man  over  each  of  them. 
Thus  were  created  the  Counties  Palatine  of  Durham,  Ches- 
ter, and  Kent.  Over  the  first  two,  in  order  that  no  strong 
feudal  families  might  be  founded,  he  placed  Bishops ;  but  oVer 
Kent  he  thought  he  might  venture  to  place  a  layman.*  Of 
these  counties,  Durham  was  the  most  powerful;  and  because 
there  was  danger  from  the  north  long  after  the  realm  was 
safe  from  invasion  from  either  west  or  southeast,  Durham 


'In  preparing  this  sketch  we  have  used  as  a  basis  Robert  Sur- 
tees's  "  History  of  the  County  of  Durham."  We  have  attempted 
to  reproduce  the  general  features  of  the  Palatinate  Franchise,  and 
have  not  sought  to  fill  in  the  more  minute  points  which  are  not 
essential  to  our  purpose,  i.  c,  to  a  concept  of  the  general  appearance 
of  the  Palatinate.  The  publications  of  the  Surtees  Society  have 
also  helped  us  considerably. 

*Taswell-Langmead  :  Const.  Hist,  of  Eng.  (4th  ed.),  pp.  61,  63. 


22      Constitutional  Beginnings  of  North  Carolina. 

was  still  mighty  at  the  period  of  the  American  colonization. 
Thus  it  happened  that  its  franchise  served  as  a  model  for 
some  of  the  proprietary  colonies  in  America, 

The  most  striking  characteristic  of  the  Palatinate  juris- 
diction was  its  independence.  The  unique  survival  of  the 
Anglo-Saxon  earldom,  it  stood  for  that  phase  of  English 
feudalism  that  most  nearly  approached  the  French  duke- 
dom. Until  Henry  VIII.,  exasperated  at  its  loyalty  to  the 
Catholic  cause,  curtailed  some  of  the  feudal  incidents  of  the 
Bishop,' — which,  however,  were  later  on  mostly  restored, — 
that  dignitary  was  practically  sovereign  in  his  bishopric. 
Qiiicqiiid  Rex  habet  extra  Episcopiis  habet  intra  ran  the 
maxim  of  Palatinate  law.*  At  the  head  of  the  landed  interest, 
the  grantee  from  the  king  and  the  grantor  to  the  county 
landowners,  the  Bishop  exercised  the  feudal  privileges  of 
escheat,  forfeiture,  and  wardship,  and  had  the  possession  of 
mines,  wastes,  forests  and  chases.  In  civil  and  in  mili- 
\z.ry  affairs  he  was  supreme.  The  courts  did  not  give  the 
king's  justice  and  did  not  punish  breaches  of  the  king's 
peace,  but  awarded  the  Bishop's  justice  and  held  to  account 
violators  of  the  Bishop's  peace.  Cases  between  his  subjects 
were  to  be  decided  in  the  Bishop's  courts.  Cases  between 
the  Bishop  and  his  subject  could  be  appealed  to  the  Court  of 
the  Exchequer,  in  London.'  The  Bishop  had,  also,  admir- 
alty jurisdiction  of  his  coasts  and  navigable  rivers,  had  his 
own  money  and  his  own  mint,  and  had  the  authority  to  grant 
charters  to  cities. 

When  the  king  had  business  with  the  county,  or  with  part 
of  it,  he  must  communicate  with  the  Bishop.  Still  the  royal 
authority  was  fully  asserted  over  this  dignitary.*  In  conse- 
quence of  its  extreme  independence  the  county  was  not,  until 


'Surtees  :  Hist,  of  Durham,  Vol.  I..  Part  I.,  p.  Ixix. 

""lUd.,  Vol.  I.,  Part  I.,  p.  xvi. 

^In  the  17th  century  a  case  between  the  Bishop  and  the  City  of 
Durham  was  decided  in  the  King's  Court  of  the  Exchequer.  Sur- 
tees  :  Hist,  of  Durham,  Vol.  IV.,  Part  II.,  p.  159. 

^Ibid.,  Vol.  I.,  Part  I.,  p.  cxxxiii. 


The  Source  of  the  Constitution.  23 

1675,  represented  in  the  House  of  Commons.  The  Bishop, 
as  a  spiritual  peer,  sat  in  the  House  of  Lords,  and  no  doubt 
watched  over  the  interests  of  the  county  in  a  general  way/ 
Parliament  fixed  the  amount  of  revenue  that  was  expected 
from  Durham.  The  Bishop  and  his  officers  determined 
how  this  was  to  be  raised,  and  proceeded  to  collect  it.' 

The  territorial  division  was  primarily  into  four  wards'  and 
the  city  of  Durham.  The  wards  contained  parishes  and 
chapelries.  A  parish  was  divided  into  constabularies,  and 
these  in  turn  into  manors,  villages,  etc. 

The  judicial  system  was  of  two  ranks:  the  county  courts, 
and  the  more  strictly  local  tribunal.  Of  the  former  class 
were  the  regular  English  county  courts  of  Law  and  Equity 
and  of  Gaol  Delivery.  The  Justices  for  these  were  appointed 
by  the  Bishop,  and  had  the  numerous  duties  of  the  English 
Justices  of  the  Peace  of  that  time.*  The  courts  of  the  second 
rank  were  the  Halmote  courts.  These  were  the  courts  of  the 
baronial  hall,  the  "  hall  moots."  Their  business  was  to  settle 
matters  of  customary  tenure,*  to  make  by-laws  and  injunc- 
tions, and  to  inflict  penalties  on  guilty  persons.  They  were 
held  by  the  Steward,  Bursar,  or  Terrar — or  by  any  two  of 
these — and  always,  as  the  records  have  it,  "  with  others."" 
It  was  these  "  others  "  that  gave  the  Halmote  court  its  popu- 
lar feature.  It  made  it  the  tribunal  of  the  tenants  of  the  estate, 
who  composed  the  vill,  and  its  judgment  represented  their 


'  During  the  time  of  Cromwell,  the  Palatinate  jurisdiction  was 
suspended  and  the  county  was  reorganized  simply  as  a  part  of  the 
realm.  It  was,  therefore,  allowed  to  send  representatives  to  Par- 
liament. These  sat  in  two  of  Cromwell's  Parliaments.  The  Res- 
toration wiped  this  away.  Cf.  Surtees  :  Hist,  of  Durham,  Vol.  I., 
Part  I.,  pp.  cvi.  and  cxlvii. 

^ Ibid.,  Vol.  I.,  Part  I.,  pp.  cxlviii.  and  'ix.  The  king's  oflScers 
collected  customs  in  the  county. 

^  The  ward  was  only  an  arrangement  for  grouping  the  parishes, 
and  had  no  civil  functions. 

■•Woodrow  Wilson  :  The  State,  p.  413. 

'"Durham  Halmote  Court  Rolls"  (Surtees  Society,  Vol.  82),  Pre- 
face, pp.  xiv.-xxxiii. 

^  Ibid.,  p.  xi.  Later  on  these  courts  were  held  by  the  Seneschal. 
Hist,  of  Durham,  Vol.  I.,  Part  I.,  p.  cv. 


24      Constitutional  Beginnings  of  No}-th  CaroUtm. 

opinion.  Its  mandates  ran:  "  Injunctum  est  omnibus  tenent- 
ibus  villae,''  or  "  ordinattim  est  ex  communi  assensu."^ 

The  executive  functions  of  the  Palatinate  government  were 
in  the  hands  of  officers  deriving  their  authorit}-  either  di- 
rectly or  indirectly  from  the  Bishop.  Highest  of  all  lay  offi- 
cers was  the  Chancellor  of  Temporalties.  The  ecclesiastical 
head,  occupied — as  was  supposed — with  religious  affairs,  en- 
trusted secular  business  to  his  chancellor.  That  officer  was 
the  administrative  head  of  the  government  His  it  was  to 
^^-ield  the  Bishop's  authorit}-,  albeit  he  was  only  an  agent  of 
his  episcopal  chief.  Beside  the  high  fimction  of  directing 
administration,  he  had  what  was  then  ahrays  considered  the 
highest  judicial  jurisdiction;  that  is  to  say,  he  presided  over 
the  court  of  Chancery.  It  was  by  virtue  of  this  function  that 
he  was  at  times  spoken  of  as  Vice-Chancellor. 

The  officer  next  in  importance  was  the  High  SheriflF.  He 
was  appointed  by  the  central  authorit}',  and  at  first  had, 
doubtless,  the  large  powers  of  the  Norman  sheriff;  but  by 
the  seventeenth  centur}'  his  power  had  been  lessened  by 
depriving  him  of  the  duties  of  actively  commanding  the 
count}'  militia,  and  of  actually  collecting  the  revenue.'  At 
no  time  in  the  histor}-  of  the  Palatinate  did  he  render  his 
accounts  in  the  Court  of  tlie  Exchequer  in  London.  He  was 
responsible  to  the  Bishop  alone. 

There  was  also  a  Receiver-General,  whose  functions  were 
the  receiving  and  the  disbursing  of  funds.  He  received  the 
rents  from  the  praepositi,  or  bailiffs,  and  the  other  dues  from 
the  constables.'     The  greater  part  of  the  Bishop's  revenue 


'  Durham  Halmote  Court  Rolls,  p.  sxiv. 

*The.?e  two  duties  had  been  given  to  the  Lord  Lieutenant  and 
the  Receiver-General.  The  former  was  first  apjpointed  in  ]536.  just 
after  the  Catholic  uprisings,  but  the  Sheriff  continued  to  have  nom- 
inal command. 

-In  Hatfield's  Survey  of  Durham  (Surtees  Soc.  Vol.  32)  there  is  an 
account  in  full  of  the  Receiver-General  for  13S4.  One  extract  taken 
at  random  from  this  will  show  the  exact  fiscal  relation:  "Etde 
til-  16.S.  Qd.  de  exitibus  et  proficuis  villae  de  Easington  currentibus 
in  on  ere  prepositi  ibid.,  cum  50.s.  de  perquisitis  halmotorum  ibid. 
Et  de  54s.  4d.  de  aliis  exit,  et  prof,  ejusdem  villae  cum  dominionon 
current,  in  onere  prepositi.  set  constabularii. "'    See  p.  264. 


The  Source  of  the  Constitution.  25 

came  from  rents  for  land.  He  also  received,  until  1660,  a 
considerable  sum  from  fines,  forfeitures  and  other  feudal  in- 
cidents. Connected  with  tlie  latter  source  of  revenue  was 
the  Escheator,  whose  mere  existence  testifies  how  important 
was  the  feudal  right  of  escheat. 

The  minor  local  officers  were  the  coroner,  the  seneschal, 
and  the  bailiff.  The  seneschal  was  practically  the  old  stew- 
ard on  the  manor.  We  find  him  appointed  to  care  for  the 
towns,  towers,  castles  or  manors  of  the  Bishop.  The  bailiff 
was  the  local  agent  of  the  Bishop.  He  looked  after  his  mas- 
ter's interests  in  general,  collected  local  rents  or  certain  feudal 
privileges,  and  was  charged  with  reporting  to  the  regular 
sessions  of  die  count}-  courts  the  violations  of  Palatinate 
law  within  his  bailiwick.^ 

In  the  County  Palatine,  as  elsewhere  in  England,  actual 
legislation  came  into  existence  slowly.  The  ancient  customs 
of  the  people,  evidenced  by  judicial  decisions,  were  for  a  long 
time  the  chief  source  of  law.  This  was  especially  true  of 
Durham.  Here  tlie  extraordinary-  privileges  of  the  Palatine 
tended  to  retard  law-making.  There  was  no  machinery  for 
assembling  the  people  to  make  their  own  laws.  Whatever 
new  measures  of  government  the  Bishop  desired  to  introduce 
he  had  passed  by  his  Council.  This  was  an  assemblage  of  the 
chief  men  of  the  countv%  and  was,  possibly,  a  formal  survival 
of  that  council  which,  in  Anglo-Saxon  times,  met  with  the 
Ealdorman  to  devise  administrative  measures  for  the  county.' 
It  was  composed,  as  the  records  say,  of  certain  enumerated 
higher  officers  and  "other  nobles";  presumably  any  nobles 
who  chose  to  be  present.'  Public  opinion  was  made  mani- 
fest at  the  count}-  courts.  If  the  people  demanded  any 
measure,  their  desire, found  expression  in  the  report  of  the 
grand  jur}-,  which  brought  the  matter  officially  before  the 
"  sessions ''  of  the  Justices.  The  wise  old  Bishops  were 
usuallv  too  much  afraid  of  losinsf  their  influence  over  the 


'Hatfield's  Survey,  p.  xiii.  HV.  Wilson  :  The  State,  p.  410. 

*  Hatfield's  Survey  (Surtees  Soc.,  Vol.  32),  p.  xviii. 


26      Constitutional  Beginnings  of  North  Carolina. 

people  to  withstand  rashly  demands  for  reasonable  reforms/ 
When  the  Bishop  had  decided  to  make  a  new  law  he  pub- 
lished it  through  the  courts/ 

Of  parish  government  in  Durham  county  but  little  need  be 
said.  The  parish  existed  by  virtue  of  English  custom,  and 
was  in  Durham  but  little  different  from  the  same  institution 
elsewhere  in  the  realm.'  We  note,  however,  that  here  it 
seems  more  decidedly  an  ecclesiastical  institution.  By  the 
seventeenth  century  the  vestry  had  already  become  "  select," 
and  in  some  instances  the  vicar  had  the  right  to  assent  to 
elections.*  At  the  middle  of  this  century,  the  time  that 
most  concerns  us,  the  civil  functions  of  the  parish  were  car- 
ing for  the  poor,  maintaining  the  highways,  assessing  the 
parish  rate,  and  a  few  other  minor  local  duties.  At  times  we 
find  the  churchwardens  called  before  the  assize  to  answer 
for  the  execution  of  certain  laws  that  had  been  made  by  Par- 
liament." Here,  as  elsewhere  in  England,  there  were  con- 
stables to  the  parishes.  They  collected  the  local  tax  and 
executed  the  decisions  of  the  local  courts. 

We  can  now  summarize  the  features  of  the  Palatinate 
Franchise.  The  county  was  a  constituent  part  of  the  govern- 
ment of  England,  subject  in  a  general  way  to  the  larger  gov- 


'Hist.  of  Durham,  Vol.  I.,  Part  I.,  p.  cxlviii. 

^  The  following  will  suffice  to  illustrate  this  :  "  It  is  orderit  by  the 
Justices  of  Peas  wythin  the  bysshopprick  of  Duresme,  by  com- 
mandement  of  my  Lord  of  Duresme  in  eschewyng  of  more  bryne 
which  gretly  hurtyth  the  hoU  contre,  as  hereafter  followythe, 
Fyrst,  that  no  mauer  person  ne  person  bryne  ne  more  fro  the  16th 
of  March  unto  the  fyrst  day  of  October,  accordyng  to  the  lawe  and 
custome  of  this  realme  of  long  time  used." — Hatfield ''s  Survey 
(Surtees  Soc,  Vol.  32),  p.  xiii.  The  memorandum  goes  on  to  say 
that  if  any  one  is  suspected  of  burning  a  moor  contrary  to  this  ord- 
inance, the  township  in  which  he  resides  must  bring  him  before 
one  of  the  Justices  of  the  Peace,  who  shall  condemn  the  culprit,  if 
convicted,  to  imprisonment  at  the  pleasure  of  the  Bishop. 

^For  an  account  of  the  historical  development  of  the  English 
parish,  see  J.  Toulmin  Smith  :  The  Parish  ;  also  Howard  :  Local 
Constitutional  History  of  U.  S. 

4  "  Parish  Books  of  Durham  "  (Surtees  Soc,  Vol.  84),  pp.  2,  12,  26, 
27. 

'/&id.,pp.  39,  67. 


The  Source  of  the  Constitution.  27 

ernment,  and  in  the  actual  administration  of  affairs  it  had  a 
distinct  machinery  of  its  own.  Within  the  county  there  were 
two  forces :  the  Bishop  and  the  people.  The  former  was  the 
chief  source  of  authorit}\  His  rule  was  central  and  per- 
sonal. He  was  the  proprietary  of  the  government.  It  was 
his  agents  that  filled  the  ollfices.  His  exercise  of  power  was 
restrained  by  public  opinion,  which  was  the  only  way  of 
showing  the  popular  will  His  ordinarily  beneficent  rule  and 
the  possibility  of  changing  a  bad  Bishop  soon,  if  one  were  in 
office,  brought  about  a  quiet  and  substantial  government. 
Upon  the  whole  the  system  was  benignly  paternal,  and  when 
in  use  by  a  conservative  population  was  capable  of  yielding, 
as  a  system,  a  considerable  amount  of  success. 


Section  hi. — T/ie  County  Palatine  in  America. 

The  Palatinate  Franchise  having  proved  to  be  a  good  form 
of  government  in  England,  and  withal  safe  against  a  very 
strong  development  of  popular  liberty,  the  king  and  the 
Lords  Proprietors  considered  it  the  best  system  for  a  colony 
planted  so  far  away  from  royal  oversight  as  America.  More- 
over, of  all  conceivable  constitutions,  it  was  most  in  accord 
with  the  king's  idea  of  what  the  constitution  of  England 
should  be.  Charles  II.,  in  common  with  all  the  other 
Stuarts,  would  have  made  the  realm  one  grand  property 
whereof  the  king  should  have  been  Lord  Proprietor. 

Almost  the  first  step  of  the  Proprietors  of  Carolina  showed 
that  they,  too,  were  in  favor  of  the  Palatinate  system.  They 
set  about  devising  a  scheme  of  government  that  contained 
all  the  characteristic  features  of  tlie  English  Count\'  Palatine. 
This  was  the  widely  known  Fundamental  Constitutions. 

These  constitutions,  although  there  is  evidence  that  they 
were  acceded  to  by  the  people  of  North  Carolina,'  were  not 
as  a  whole  put  into  force.  Those  features  that  it  was  thought 
possible  to  enforce  with  the  conditions  then  existing  in  tlie 

'Col.  Recs.,  III.,  p.  452. 


28      Constitutional  Beginnings  of  North  Carolina. 

colony  were  embodied  in  a  temporary  constitution,  and  that 
became  the  basis  of  the  constitutional  gTO\vth  of  the  prov- 
ince. Speaking  generally,  all  those  provisions  that  related  to 
the  privileged  classes  and  their  position  in  society  were  held 
in  abeyance;  but  there  was  no  change  in  the  spirit  of  the 
government     It  was  still  strongly  central  and  personal. 

Examining  the  temporary-  constitution  systematically,  we 
are  first  attracted  by  the  fact  that  the  chief  officer  of  the  gov- 
ernment bore  the  title  of  Palatine.  This  ^^'as  undoubtedly  in 
direct  imitation  of  the  Count}'  Palatine.  Furthermore,  the 
Governor  of  the  colony  was  at  times  called  "  Vice-Palatine." 
The  Proprietary'  was  supreme.  It  had  the  veto  power  in 
legislation,  and  at  first  claimed  the  right  of  initiative.  It  ap- 
pointed the  chief  officers,  and  its  chief  officers  appointed  the 
minor  officers.  There  was  also  a  High  Sheriff,  with  lessened 
powers,  similar  to  those  of  the  sheriff  of  the  count}'  of  Dur- 
ham. There  is  the  same  Receiver-General  of  quit-rents,  and 
the  same  local  collectors,  though  not  called  bailiffs;  the 
same  system  of  land  grants  and  quit-rents;  and  the  same 
Escheator.  To  enable  feudal  land  tenure  to  be  perfect,  as  it 
was  in  Durham  in  its  palmiest  days,^  the  statute  of  Quia  emp- 
tores  was  relented.  There  was,  also,  the  same  system  of 
courts,  (i)  The  General  Court  corresponded  to  the  cotmty 
court  of  the  Palatinate,  and  was  held  by  appointees  of  the 
Proprietors.  It  had  the  same  jurisdiction  and  sat  as  Oyer 
and  Terminer,  Gaol  Deliver}',  King" s  Bench,  Common  Pleas, 
and  the  Exchequer.  (2)  The  local  courts  were  the  Precinct 
courts,  which  corresponded  to  the  Durham  Halmote  courts, 
being  held  entirely  under  the  control  of  the  Proprietors  and 
having  the  same  local  jurisdiction  over  the  same  tenants  of 
the  proprietors  of  the  government  In  addition,  the  Vice- 
Palatine,  by  a  deputation  of  the  high  authority  of  the  Pala- 
tine, exercised  chancer}'  jurisdiction  in  the  colony,  just  as  the 
Bishop's  deput}'  exercised  it  in  Diirham. 


"'The  Proprietors  had  the  right  to  their  privileges,  it  will  be  re- 
membered. ••  in  as  ample  manner  as  any  Bishop  "'of  Durham.  (Col. 
Recs..  I..  103  :  also  supra,  p.  20.) 


The  Source  of  the  Constitution.  29 

Still,  there  was  a  difference  between  the  Palatinate  in 
Durham  and  in  North  Carolina.  In  the  former  place,  cus- 
toms and  traditional  rights  made  it  irregular  in  some  of  its 
details;  it  presented  a  broken  surface.  In  America  no  cus- 
tom or  tradition  was  to  prevent  its  uniform  operation.  The 
Lords  thought  that  they  had  simply  to  devise  a  system  and 
put  it  into  the  way  to  work  of  its  own  accord.  In  Durham, 
-  custom  had  preserved  to  the  popular  element  of  government 
some  local  functions;  in  North  Carolina  these  did  not  appear. 
The  proprietary  scheme  ruled  them  out.  The  royal  grant 
had  guaranteed  to  the  people  an  assembly;  but  even  this 
had  been  largely  nullified  by  the  Proprietors,  who  at  first 
constituted  their  legislature  so  that  for  some  time  they 
remained  chief  wielders  of  its  law-making  power. 

The  parish  did  not  come  into  North  Carolina  till  the  colony 
was  fairly  settled,  and  during  the  proprietary  period  it  was 
not  uniformly  and  fully  established.^  In  those  few  parishes 
in  which  there  were  efforts  to  keep  up  the  establishment,  the 
civil  functions  were  caring  for  the  poor  and  assessing  the 
local  rate.  Through  an  abundance  of  food  in  the  colony,  the 
former  was  not  important,  and  the  latter,  being  usually  con- 
fined to  expenditure  for  religious  purposes,  was  but  poorly 
paid  by  the  Dissenters,  and  so  it  became  but  little  more  than  a 
voluntary  offering  by  the  members  of  the  Established  Church. 
The  other  important  function  of  the  civil  parish,  the  care  of 
highways,  was,  long  before  the  introduction  of  the  parish, 
confided  to  officers  appointed  by  the  precinct  court,  and 
there  it  remained. 

The  "  open  vestry  "  was  never  known  in  Proprietary  North 
Carolina.  The  affairs  of  the  parish  were  in  the  hands  of  a 
"  select  vestry,"  which  was  created  in  the  first  instance  by  the 
Assembly,  and  was  replenished  by  co-optation. 

'  Col.  Recs.,  III.,  pp.  48,  152,  153. 


30      Constitutional  Beginnings  of  North  Carolina. 


CHAPTER  III. 

The  Proprietors  and  the  Constitution. 

Section  i. —  T/ie  Legal  Status  of  the  Lords  Proprietors. 

'  The  powers  conferred  by  the  royal  granf  on  the  eight 
"  true  and  absolute  Lords  and  Proprietors  "'  of  Carolina  may 
be  classified  as  (i)  legislative,  (2)  executive/  and  (3)  relating 
to  land. 

Taking  up  these  in  order,  we  find  that  in  regard  to  legis- 
lation the  Proprietors  were  given  the  right  to  make  laws 
"  by  and  with  the  advice,  assent  and  approbation  of  the  free- 
men of  the  said  province."  By  this  clause  the  Lords  con- 
sidered that  they  had  the  right  of  veto  and  initiative  in  legis- 
lation.* By  another  clause  they  must  "  from  time  to  time 
assemble  in  such  manner  and  form  as  to  them  shall  seem 
best "  the  freemen  or  the  delegates  of  the  same.  The  Pro- 
prietors interpreted  this  as  giving  them  the  entire  control  of 
elections  and  of  districts  of  representation,  as  well  as  of  the 
time  and  place  of  meeting,  and  of  the  adjourning  and  the 


'  We  have  used  for  reference  the  grant  of  1665,  which  does  not 
materially  differ  from  the  first  grant,  that  of  1663.  Being  the  last, 
it  was  the  one  under  which  the  Proprietors  may  be  considered  to 
have  held.     See  Col.  Recs.,  I.,  pp.  102-114. 

*They  were  :  Earl  of  Clarendon,  Chancellor  of  England;  Duke  of 
Albemarle,  Master  of  Horse  ;  Earl  of  Craven  ;  John,  Lord  Berkeley, 
King's  Councillor  ;  Lord  Ashley,  Chancellor  of  the  Exchequer  and 
later  the  Earl  of  Shaftesbury  ;  Sir  George  Carteret,  King's  Council- 
lor ;  Sir  John  Colleton  :  and  Sir  William  Berkeley,  then  Governor 
of  Virginia. 

^  At  this  time  the  modern  classification  of  government  functions 
into  executive,  judicial,  and  legislative  had  not  come  into  existence. 
This  distinction" dates  from  Montesquieu.  Before  him,  the  right  of 
administering  justice  was  considered  a  part  of  the  king's  executive 
function.  For  obvious  reasons,  we  have  followed  the  older  method 
of  classification. 

*  Lord  Baltimore  had  these  rights  by  the  royal  grant,  but  by  wisely 
using  the  one  and  graciously  foregoing  the  other  he  avoided  any 
conflict  with  the  settlers.  See  McMahon :  Hist,  of  Maryland,  L, 
p.  145. 


The  Proprietors  and  the  Constitution.  31 

prorogT-iing  of  the  Assembly.  In  the  intervals  between  the 
meetings  of  the  Assembly  the  Lords  could  make  ordinances 
dealing  with  all  ordinary  matters,  but  not  in  any  way  impair- 
ing the  rights  of  ''  freeholds,  goods,  or  chattels."  The  power 
of  making  both  laws  and  ordinances  was  limited  by  the  re- 
quirement that  all  laws  should  be  consonant  to  reason  and 
as  near  as  possible  to  the  laws  of  England. 

The  executive  powers  were  all  that  were  necessary'  for  the 
efficient  management  of  internal  affairs.  Only  in  that  they 
had  not  the  actual  sovereignty  did  the  Proprietors  lack  full 
royal  powers;  and  yet  their  authority  was,  for  the  purposes  of 
their  government,  as  ample  as  that  of  royalt}-.  The  charter, 
after  conferring  the  general  palatinate  jurisdiction,  went  on 
to  grant  specifically  the  most  important  privileges  embraced 
in  that  system.  These  were  the  civil  functions  of  creating 
and  filling  offices;  of  incorporating  towns,  ports  of  entry, 
cities,  etc.;  of  granting  titles  of  honor,  provided  they  were 
not  the  same  as  those  used  in  England;  of  holding  courts  of 
justice  and  of  punishing  to  the  extent  of  life  and  limb;  of 
pardoning  offenses;  of  erecting  counties  and  other  local  di- 
visions; of  creating  baronies,  with  courts  baron  and  leet,  and 
\vith  views  of  frank-pledge;  of  collecting  customs  duties 
when  laid  with  the  consent  of  the  Assembly;  and  of  having 
the  advowsons  of  churches.  They  also  had  the  militar}-  func- 
tions of  making  war  against  the  Indians  and  other  internal 
enemies,  on  land  and  on  sea;'  of  raising  and  maintaining 
troops;  of  appointing  officers  for  the  militia;  of  fortifying 
their  possessions;  and  of  declaring  martial  law  when  they 
thought  it  necessar}\ 

These  extensive  powers  were  rather  vaguely  limited  by 
reminding  the  Proprietors  that  their  privileges  did  not  con- 
travene their  sovereign  duties  to  the  crown.  There  was,  how- 
ever, another  Hmitation,  which,  though  not  expressly  men- 
tioned, was  still    a   strong  instrument  in  the  hands  of  the 


The  right  of  making  war  on  foreign  enemies  was  withheld, 
because  that  would  have  implied  sovereignty  in  the  Proprietors, 
and  it  might  have  involved  England  in  war. 


32      Constitutional  Beginnings  of  North  Carolina. 

people  against  too  arbitran^  a  use  of  power  by  the  Lords. 
This  was  tlie  right  on  the  part  of  tlie  Assembly  of  consenting 
to  money  bills.  It  was  but  little  advantage  to  the  Proprie- 
tors that  they  could  levy  troops  if  the  Assembly  alone  could 
pay  them.  This  fact  was  of  great  influence  in  keeping  the 
government  weak,  and,  consequently,  so  timid  that  it  soon 
lost  the  respect  of  the  people.  But  in  the  case  of  the  higher 
officers  this  restriction  was  almost  neutralized  by  the  fact  that 
these  officers  received  nearly  all  of  their  salaries  from  moneys 
taken  in  for  quit-rents  or  from  sales  of  lands.  They  were, 
consequently,  not  directly  dependent  on  the  \\i\\  of  the 
Assembly.  Only  in  the  case  of  fees,  which  were  fixed  by  the 
Assembly,  were  they  even  indirectly  dependent  on  the  legis- 
lature. 

In  regard  to  land,  the  Lords  were  tenants-in-chief,  hold- 
ing "  in  free  and  common  socage,"  but  still  "  true  and  abso- 
lute "  proprietors,  "  saving  always  their  faith,  allegiance  and 
sovereign  dominion  due  to  us,  our  heirs  and  successors  for 
the  same  ";  i.  e.,  for  the  land.  Besides  one-fourth  of  all  gold 
and  silver  ore  that  should  be  discovered,  they  were  to  pay  "  a 
yearly  rent  of  twent}--  marks,"  receivable  at  the  king's  manor 
of  East  Greenwich  in  Kent.  The  land  thus  held  could  be 
granted  to  others  in  fee  simple,  fee  tail,  for  life,  lives,  or 
years;  to  be  held  by  such  customs,  rents,  or  ser\dces  as  the 
Proprietors  chose  to  agree  to.  That  the  lesser  grantee  might 
know  that  his  rights  were  safe,  he  was  accorded  the  right  of 
holding  lands  on  the  above-named  terms.  As  a  further  se- 
curit}-,  the  statute  of  Quia  emptor cs  (i8  Edw.  I.),  by  which 
subinfeudation  had  been  forbidden  in  England,  was  made 
inoperative  in  North  Carolina. 

So  far  we  have  spoken  of  the  Proprietors  only;  and  it  is 
with  them  that  the  grant  was  chiefly  concerned.  There  was 
only  slight  mention  of  the  rights  of  the  people.  There  was 
enough,  however,  to  guarantee  to  them  the  common  rights 
of  Englishmen;  that  is  to  say,  the  right  of  consenting  to  laws; 
of  exporting  and  importing  commodities  on  the  same  foot- 
ing with  Englishmen;  and  of  not  being  tried  for  crime  in 


The  Proprietors  and  the  Constitution.  33 

another  colony  than  Carolina;'  together  with  the  English 
personal  and  property  rights;  liberty  of  conscience,  although 
provision  was  made  for  church  establishment;  and  the  privi- 
leges of  liege  subjects  of  the  English  Crown.  In  order  to 
encourage  the  planting  of  the  colony,  it  was  declared  that 
certain  specified  articles,  which  it  was  thought  were  especially 
adapted  to  Carolina's  soil  and  climate,  should  for  seven  years 
be  admitted  to  England  free  of  duty. 

The  grant  conferred  essentially  the  same  privileges  that 
Charles  I.  accorded  to  the  Proprietor  of  Maryland.  It  may, 
therefore,  seem  strange  that  while  in  Maryland  the  proprie- 
tary rule  was  well  received,  being  twice  abolished  and  as 
many  times  reinstated  to  the  great  satisfaction  of  the  people/ 
in  North  Carolina  it  produced  strong  opposition  and  real 
misery,  its  abrogation  being  hailed  by  the  people  with 
delight.  The  cause  lies  in  the  personal  qualities  of  the 
two  proprietaries.  Lord  Baltimore  used  his  extraordinary 
powers  wisely,  justly,  and  honestly.  He  realized  for  the 
County  Palatine,  as  applied  to  colonization,  whatever  ad- 
vantages inhere  in  it  as  a  system.  In  North  Carolina  the 
Proprietors,  being  eight  in  number,  lacked  unity  of  organi- 
zation. They  were,  also,  not  informed  as  to  the  conditions 
of  life  in  the  colony,  and  they  made  such  unhappy  selections 
of  agents  that  their  government  became  a  burden  to  the  gov- 
erned and  a  pest  to  the  governors.  These  facts  operated  to 
make  the  proprietary  system  a  failure  in  Carolina.  The  ex- 
perience of  these  two  colonies — Maryland  and  North  Caro- 
lina— leads  us  to  conclude  that  the  chief  fault  of  the  absolute 
proprietary  colony  was  that  it  made  the  destiny  of  the  people 
too  much  dependent  on  the  will  of  the  Proprietary.  Still,  any 
fair  mind  must  agree  that  the  system  admitted  of  excellent 
results  in  proper  hands. 

While  on  this  point,  we  must  say  something  of  the  circum- 
stances under  which  the  grant  was  made.     One  occasionally 


'  They  were  still  allowed  an  appeal  to  the  king. 
'McMahon  :  Hist,  of  Md.,  I.,  141-2. 


34      Constitutional  Beginnings  of  Xorth  Carolina. 

encounters  the  idea  that  tlie  government  must  have  been 
especially  odious  because  it  was  given  to  eight  of  the  ''  fav- 
orites "  of  Charles  II.  Now,  there  is  a  certain  uncompli- 
mentar}-  sense  in  which  this  term  is  at  times  used,  but  there 
is  no  just  reason  for  employing  it  here.  If  by  "'  favorites  " 
one  means  those  whom  the  king  called  to  help  him  in  the 
affairs  of  state,  there  can  be  no  objection  to  using  the  expres- 
sion; for,  of  the  eight,  five  occupied  high  offices  at  home, 
and  one  more  was  Governor  of  the  most  powerful  English 
colony  in  America.  It  is  fair  to  suppose  that,  as  statesmen 
went  in  those  days,  the  Proprietors  were  among  the  best. 
At  a  time  when  all  England  went  wild  ^^■ith  devotion  to  the 
restored  Stuarts,  nearly  all  of  these  eight  men  had  the  dis- 
tinction of  being  among  that  small  number  whose  loyalty 
was  not  an  outgro^^th  of  expediency,  or  of  opposition  to  the 
arbitran.-  rule  of  Cromwell.  They  had,  for  the  most  part, 
been  loyalists  before  the  war,  and  many  of  them  had  lost 
propert}-  by  their  loyalt\-.^ 

That  the  good-natured  king  should  have  desired  to  reim- 
burse these  losses  was  more  than  natural — ^it  was  honorable. 
That  he  should  have  paid  the  obligation  out  of  his  American 
lands — that  species  of  wealth  of  which  he  had  the  most — was 
unexceptionable.  If,  to  our  minds,  it  is  an  unwarrantable 
stretch  of  prerogative  for  the  king  to  assume  to  provide,  of 
himself,  for.tlie  government  of  English  citizens  in  America, 
it  ought  to  be  remembered  that  it  was  strictly  within  the 
custom  of  the  time. 

Whatever  may  have  been  the  Crown's  legal  right  in  the 
first  instance,  there  was  in  1665  ample  precedent  for  the 
king's  power  to  dispose  of  the  government  of  the  Carolina 
colony.  Judged  by  the  standard  of  the  times — sometliing  we 
should  always  remember  in  weighing  historical  actions — 
there  was  nothing  improper  about  the  transaction. 


'  Clarendon.  Colleton.  Carteret,  and  John  Berkeley  had  suffered 
•with  Charles  II.  Albemarle,  formerly  General  Monk,  had  helped 
to  reinstate  him.  and  Wm.  Berkeley  had  as  Governor  of  Virginia 
kept  the  inhabitants  of  that  province  lovallv  affected  to  the  Stuarts 
(Nar.  and  Crit  Hist..  V.,  286.  note  2). 


The  Proprietors  and  the  Constitution. 


Section  ii. —  T/ie  Proprietors'  Theory  of  Government — 
Tlie  Fundamental  Constitutions. 

Having,  as  we  hope,  set  the  Proprietors  in  a  just  light, 
let  us  see  how  they  acquitted  themselves  as  governors. 
The  most  characteristic  feature  of  the  period  is  the  confusion 
which  grew  out  of  the  uncertain  nature  of  the  constitution. 
For  the  first  fifty  years  of  the  life  of  the  colony  the  inhabi- 
tants could  not  be  sure  that  their  government  was  stable. 
The  Concessions  of  1665  established  one  form  of  govern- 
ment, which,  so  far  as  the  inhabitants  were  informed,  was  to 
be  permanent.  In  1670  the  Fundamental  Constitutions  ar- 
rived. With  them  came  a  temporary  constitution.  The 
former  was  received  by  the  Assembly,'  and  the  latter  was 
actually  put  into  force.  The  existing  system  was  reor- 
ganized in  1691.  After  1670  the  Lords  sent  three  editions 
of  the  Constitutions  to  Carolina.  These  changes  must  have 
failed  to  give  to  the  people  that  idea  of  permanency  which  is  so 
necessary  to  any  constitution.  In  1680  Shaftesbury  himself 
declared  that  there  had  never  been  any  regularly  organized 
government  in  the  colony.  Unquestionably  the  Proprietors 
were  failures  as  rulers.  It  was  only  in  171 5,  when  the  Con- 
stitutions became  as  a  system  forever  impossible,  and  when 
the  Lords  relaxed  their  right  to  prescribe  government  and 
allowed  the  people  to  frame  their  own  code  of  laws,  that  any- 
thing like  regularity  and  security  from  change  came  into  the 
government  of  North  Carolina. 

From  what  has  just  been  said  it  may  be  inferred  that  there 
were  till  171 5  two  constitutions  for  the  colony,  the  one  theo- 
retical and  the  other  practical.  We  must  now  analyse  these. 
The  latter  we  reserve  for  another  place,  and  the  fomier  we 
shall  consider  as  regards  both  its  elements  and  its  relation 
to  the  constitution  actually  put  into  force.  This  is  the  more 
demanded  because  this  system  has  rarely  received  just  the 


'Col.  Rec8.,III.,  452. 


36      Constitutional  Beginnings  of  North  Carolina. 

treatment  it  deserves.  It  has  been  viewed,  it  seems  to  us, 
too  much  from  the  standpoint  of  nineteenth  century  democ- 
racy. 

The  conditions  out  of  which  the  Fundamental  Constitu- 
tions arose  were  pecuhar.  The  moment  during  which  they 
were  conceived  was  a  breathing-time  just  after  two  unsuc- 
cessful experiments  with  opposite  radical  ideas  of  govern- 
ment. English  statesmen  were  pondering  over  their  expe- 
riences, first  under  an  absolute  monarchy,  and  then  under  a 
government  that  grew  out  of  a  movement  for  an  absolute 
democracy.  The  world  has  now  come  to  think  that  Crom- 
well, with  perhaps  the  best  intentions,  made  as  great  a  mis- 
take as  the  Stuarts  made.  It  also  knows  that  the  military 
despotism,  by  which  the  Protector  found  it  necessary  to  sup- 
port his  authority,  was  not  a  necessary'  accompaniment  of 
popular  libert}\  Englishmen  of  the  time  of  which  we  are 
speaking  understood  the  former  fact  but  slightly  and  the 
latter  not  at  all.  To  them  each  extreme  seemed  equally  to 
be  avoided.  Accordingly,  thoughtful  people  concluded  that 
it  was  safest  to  trust  the  government  to  the  middle  class,  the 
landed  nobilit}'.  From  this  time,  and  in  accordance  with 
this  idea,  there  arose  the  Whig  party,  which  in  a  bloodless 
revolution  overthrew  the  party  of  the  royal  prerogative,  and 
established  the  principles  of  English  liberty  in  the  important 
Bill  of  Rights.  It  was  through  its  influence,  either  in  office 
or  out,  that  the  kingdom  was  brought  to  a  condition  in 
which  self-government  was  possible. 

It  is  a  worthy  tribute  to  Shaftesburv-,  who,  whatever  his 
later  course,  was  at  this  time  considered  a  well-intentioned 
man,  that  he  foresaw,  when  Whigger)-  was  a  realit}'  in  the 
minds  of  but  few,  by  what  means  the  future  was  to  be  made 
safe.  He,  now  that  Clarendon  had  gone  into  voluntary'  exile 
on  the  Continent,  was  the  most  influential  of  the  eight  Pro- 
prietors. When  an  ideally  perfect  system  of  government 
was  to  be  de\dsed  for  the  colony,  he  brought  forward  his 
views.  Although  Locke,  the  Philosopher,  wrote  the  Consti- 
tutions, Shaftesbury  inspired  them.     But  the  spirit  in  them 


The  Proprietors  and  the  Constitution.  37 

was  an  outgrowth  of  the  time.  The  time  was  an  unfortunate 
moment,  when  men  had  in  their  fright  relapsed  into  the  ideas 
of  the  fourteenth  century. 

Locke's  share  of  the  work,  however,  must  not  be  ignored. 
He  suppHed  the  details  for  a  plan  whose  general  require- 
ments were  furnished  him.  The  young  philosopher  was 
doubtless  under  the  influence  of  recent  experiences,  and  it 
was  then  a  score  of  years  before  he,  among  the  forces  of  the 
"  Glorious  Revolution,"  published  his  great  works  "  On  Civil 
Government "  and  "  On  Toleration."  Still  the  spirit  that 
produced  "  The  Leviathan "  was  not  all  lost  on  the  young 
Locke.  Throughout  the  Constitutions  we  see  the  principle 
of  civil  liberty  continually  asserting  itself.  Wherever  the 
feudal  outline,  the  required  part,  ceases,  liberal  ideas  appear. 

In  accordance  with  the  idea  of  a  landed  aristocracy,  the 
Fundamental  Constitutions^  divided  society  into  seven  ranks. 
At  the  top  were  the  Proprietors,  who  were  always  to  be  eight 
in  number,  and  each  of  whom  should  have  a  seigniory,  or 
twelve  thousand  acres  of  land,  in  each  county.  This  gave  the 
Proprietors  one-fifth  of  the  land  in  each  county.  One  Pro- 
prietor, the  Palatine,  was  at  the  head  of  the  whole  govern- 
ment. All  tlie  other  Proprietors  were  associated  with  him 
so  as  to  form  the  Palatine's  court,  the  chief  court  of  the  prov- 
ince. All  executive  functions  were  grouped  into  seven 
classes,  or  offices,  and  a  Proprietor  was  placed  in  each  ofifice. 
Thus  there  was  a  Chancellor,  a  Treasurer,  a  Steward,  etc. 
Each  of  these  officers,  with  six  associates,  formed  a  court 
with  supreme  jurisdiction  of  the  function  or  functions  for 
which  that  officer  stood.  All  these  courts  were  integrated 
into  a  Grand  Council,  over  which  the  Palatine  presided,  and 
which  had  an  ad  intermi  ordinance-making  power  and  the 
right  of  initiative  in  legislation. 

There  were  two  ranks  of  hereditary  nobility,  landgraves 


'  We  have  used  in  this  sketch  the  edition  of  1669.  It  is  the  first 
authorized  edition  and  is  most  easily  accessible.  See  Col.  Recs.,  I., 
187-206.  The  Constitutions  as  amended  in  1698  can  be  found  in 
the  Appendix  to  Vol.  II.  of  the  same  series. 


38      Constitutional  Beginnings  of  Xorth  Carolina. 

and  caciques.  There  must  be  one  of  tlie  former  with  four 
baronies''  and  triO  of  the  latter  with  two  baronies  each  in 
eveiy  count}'.  One  man  could  have  but  one  dignit}-.  In 
case  of  failure  of  the  heirs  of  one  of  these  dignitaries,  the 
Palatine's  Court,  or  that  failing,  the  Parliament  -was  to  fill  the 
vacanc)'.  The  lord  of  each  seignior}^  or  barony  had  the 
right  to  hold  courts  leeL  He  could,  also,  grant  t>;\TO-thirds 
of  his  land  to  tenants  for  not  more  tlian  three  lives  or 
twaity-one  years;  but  the  remaining  one-third  must  be  re- 
served for  demesne. 

Thus  we  see  that  the  Proprietors  and  the  hereditary'  no- 
bility had  two-fifths  of  the  land  of  each  count}\  The  re- 
mainder was  to  be  held  by  the  freemen,  in  small  holdings. 
It  was  divided  into  four  precincts,  each  of  which  contained 
six  colonies.  It  was  held  directly  of  the  Proprietors,  the 
holders  paying  annual  quit-rents  for  it  If  a  man  had  from 
three  to  t^velve  thousand  acres  the  Palatine's  Court  might 
erect  his  estate  into  a  manor.  The  lord  of  a  manor  had  the 
same  privileges  on  his  manor  that  a  landgrave  had  on  his 
baronies,  but  was  not  considered  one  of  the  hereditary  no- 
biUty.  To  render  this  system  permanent  primogeniture  wzs 
recognized,  and  it  was  declared  that  these  four  kinds  of  estates 
should  be  indivisible,  and,  with  the  exception  of  manors,  in- 
alienable. 

Below  the  four  ranks  already  mentioned  were  the  freemen. 
These  were  the  smaller  landowners.  They  made  up  the 
majorit}'  of  the  people,  and,  as  a  matter  of  fact,  were  the  only 
persons  mentioned  in  the  Constitutions,  except  slaves,  that 
settled  in  Xorth  Carolina.  They  were  allowed  to  vote  for 
delegates  to  the  Pariiament,  and  if  they  had  a  certain  amount 
of  land  could  hold  most  of  the  minor  offices. 

Proprietors,  landgraves,  caciques,  and  freemen — ^the  last 
through  their  delegates — all  met  in  a  bieimial  Parliament. 
All  ranks  sat  together  in  one  body,  but  when  a  Proprietor 
protested  against  a  proposed  measure,  the  body  resolved  it- 

^  12,000  acres  of  land  was  a  barony,  a  colony,  or  a  seigniory. 


The  Proprietors  and  the  Constitution.  39 

self  into  four  estates  and  repaired  to  different  rooms  to  vote 
on  the  question  at  issue.  If  one  chamber  voted  in  the  nega- 
tive the  bill  was  lost.  All  laws  to  be  voted  on  must  have 
been  prepared  in  the  Grand  Council  and  when  approved  in 
the  Parliament  must  be  endorsed  by  the  Palatine  and  three 
Proprietors,  or  they  were  not  binding. 

Below  the  freemen  were  the  leetmen.  These  were  tenants 
of  the  seigniories,  baronies,  or  manors,  and  had  certain  legal 
rights  against,  as  well  as  certain  legal  duties  towards,  their 
lord.  On  the  marriage  of  a  leetman  or  a  leetwoman  the  lord 
was  bound  to  give  the  newly  married  pair  ten  acres  of  land, 
for  which  not  more  than  one-eighth  of  the  yearly  produce 
could  be  taken  as  rent.  A  leetman  was  under  tlie  legal  juris- 
diction of  the  lord's  court,  without  appeal  to  a  higher  tri- 
bunal. Moreover,  he  was  ad  scripts  s  glchac ;  that  is  to  say, 
he  could  not  change  his  habitation  without  his  lord's  written 
permission.  Whoever  voluntarily  became  a  leetman  was  a 
leetman;  and  the  rank  once  acquired  was,  like  every  other 
rank  of  the  Constitutions,  hereditary.^ 

The  seventh  and  lowest  rank  was  slavery.  A  master  was 
given  absolute  authority  over  his  negro  slave,  but  he  was  not 
allowed  to  bind  their  souls;  for,  contrary  to  a  later  practice 
of  a  part  of  the  slave-owners  in  North  Carolina,"  a  slave  was 
allowed  the  privilege  of  becoming  a  church  member. 

The  provisions  tlius  far  recounted  may  be  considered  the 
necessary  features  of  a  landed-aristocratic  government.  Be- 
yond these  there  were  no  ver}'  objectionable  points.  An  ade- 
quate system  of  local  courts  was  provided  for  the  freemen. 
Trial  by  jury  was  guaranteed,  but  a  verdict  need  not  be 
unanimous.     The   English  system  of  town  government  by 


'  Bad  as  this  institution  was,  it  is  doubtful  if  it  was  worse  than 
the  custom,  then  extensively  practised  in  England,  of  kidnapping 
children  and  peasants  for  bonded  servants  in  the  American  colo- 
nies.    See  Doyle  :  English  Colonies  in  America,  pp.  382-5. 

'As  late  as  1709.  James  Adams,  the  missionary,  testifies  that  some 
slave-owners  would  not  allow  their  slaves  to  be  baptized  because 
they  thouglit  they  would  have  no  right  to  enslave  Christians.  Col. 
Recs.,  I.,  p.  720. 


40      Constitutional  Beginnings  of  Xorth  Carolina. 

council,  aldermen,  and  mayor  was  introduced.  Jur}'men, 
voters,  and  officeholders  must  have  a  specified  amount  of 
land.  Two  ideas  seem  to  have  been  taken  from  the  Romans: 
(i)  like  Justinian,  the  Proprietors  declared  that  there  should 
be  no  commentaries  on  their  body  of  law;'  and  (2)  by  mak- 
ing it  a  base  thing  to  plead  for  money,  they  seem  to  have  de- 
sired to  introduce  the  custom  by  which  the  Roman  nobles 
pleaded  the  causes  of  their  clientes. 

The  most  strikingly  liberal  feature  was  the  attitude  to- 
wards religious  belief.  The  Constitutions  provided  for  per- 
fect toleration  of  all  churches.  To  give  a  church  legal 
standing  it  must  have  at  least  seven  members.  These  must 
believe  in  a  God  who  was  to  be  publicly  worshiped,  and 
must  declare  their  methcxi  of  testifying  in  a  court  of  justice. 
It  must  be  confessed  that  even  in  the  present  time  of  sects  it 
would  be  difficult  to  call  any  body  of  people  a  church  that 
could  not  come  up  to  these  requirements.  The  liberalness 
of  this  will  be  seen  when  it  is  remembered  that  it  w^as  devised 
at  a  time  when  the  English  Parliament  was  rushing  into  the 
passing  of  the  iniquitous  Test,  Conventicle,  and  Five  Mile 

xA-CtS. 

Another  notably  liberal  feature  was  the  provision  for  a 
biennial  Parliament.  In  England  the  king  and  the  dominant 
party  were  devising  schemes  by  w-hich  they  could  rule  with- 
out a  Parliament;  but  the  Proprietors  guaranteed  the  Caro- 
linians that  they  should  have  the  right  to  elect,  and  to  as- 
semble, their  Parlianment  even,-  two  years,  whether  or  not  an 
election  were  ordered  or  the  Parliament  formally  summoned. 
If  this  arrangement  were  better  than  that  of  England,  it  far 
excelled  that  then  in  practice  in  the  adjoining  colony  of 
Virginia,  where  the  Assembly  was  not  dissolved  for  eighteen 
years.*  Moreover,  there  were  no  "  pocket  boroughs  "  in  the 
colony,  representation  being  fairly  apportioned  among  the 
freemen. 

'  Hadley  :  Introduction  to  Roman  Law.  p.  19. 

'Bancroft  :  Hist,  of  the  U.  S..  Vol.  I.,  p.  50  'Ed.  1876). 


The  Proprietors  and  tlie  Constitution.  41 

To  sum  up,  the  Fundamental  Constitutions  were  based  on 
principles  of  like  nature  with  those  of  tlie  Whig-  party.  They 
were  feudal  in  their  tendency,  but  guaranteed  what  were  then 
considered  the  most  important  personal  rights.  Their  re- 
acdonar}'  features  were  hardly  worse  than  their  generation, 
and  their  liberal  features  were  much  better  than  the  time. 
They  were  a  system  that  the  English  people  might  well 
have  had  for  themselves.  Indeed,  their  appearance  was 
hailed  with  marked  approbation.  On  all  sides  people  said 
thit  Locke's  model  was  an  ideal  one.  France  and  Gertiiany 
at  any  time  in  the  seventeenth  or  eighteenth  centuries  might 
well  have  considered  them  a  boon.  Almost  any  Continental 
nation  of  that  day  might  advantageously  have  adopted  them. 
It  was  not  till  the  manifestation  of  that  reform  spirit  which 
the  American  Revolution  transmitted  to  the  Old  World  that 
the  constitutions  of  most  European  governments  showed 
any  striking  improvement  on  the  principles  of  the  Funda- 
mental Constitutions. 

But  if  they  would  have  done  for  the  Old  World  they  would 
not  do  for  the  New.  The  distinguishing  principle  of  gov- 
ernmental policy  developed  in  the  period  of  our  early  history 
was  a  return  to  nature;  not,  as  Rousseau  thought,  as  nature 
was  in  some  ill-defined,  prehistoric  time ;  but  as  nature  then 
existed  in  the  simple  feelings  and  common  sense  of  the 
people.  The  conditions  of  pioneer  life  made  the  existence 
of  such  an  idea  inevitable.  In  North  Carolina  it  was  uni- 
versal, and  where  it  held  sway  the  system  of  Shaftesbury 
and  Locke  could  never  come  into  use. 

Of  this  the  Proprietors  were  half  conscious.  They  sent 
along  with  the  Fundamental  Constitutions  a  temporary  form 
which  was  partly  an  adaptation  of  the  larger  system. 
It  did  what  tiie  Governor  was  instructed  to  do;  /.  r.,  it  ob- 
ser\'ed  "  what  can  at  present  be  put  into  practice  of  our " 
Constitutions.*  The  original  instrument  was  "  received  ''  by 
the  people'  in  North  Carolina  and  was  afterwards  pleaded  as 

'  C!ol.  Recs. ,  I. .  181.       *  » Ibid. ,  III. ,  452. 


42      Constitutional  Beginnings  of  North  Carolina. 

the  evidence  of  a  compact  between  the  people  and  the  Pro- 
prietors. It  never  replaced  the  temporary  form,  but  con- 
tinued for  some  time  a  kind  of  constitution  in  remainder, 
awaiting  the  time  when  it  might  come  into  its  rights.  This 
time  never  came.^  A  more  popular  system  took  by  pre- 
scription, and  held  by  force,  the  authority  of  the  government 
and  its  right  was  recognized  in  the  Revisal  of  1715.^ 

The  effect  of  the  Constitutions'  was,  speaking  generally, 
negative.     They  prevented  the  development  of  a  better  form 


'  It  is  likely  that  the  Constitutions  continued  their  anomalous  ex- 
istence till  1715.  We  have  no  evidence  that  before  this  date  they 
were  repealed,  but  they  were  gradually  falling  out  of  the  minds  of 
the  Proprietors  several  years  earlier.  This  is  shown  by  the  fact 
that  they  are  continually  mentioned  in  the  commissions  to  the  Gov- 
ernors till  in  Gov.  Tynte's  commission,  1708,  all  reference  to  them 
is  omitted  (Col.  Recs.,  I.,  695).  They  are  last  mentioned  in  a  Gov- 
ernor's commission,  so  far  as  we  know,  in  1702  (lb.,  I.,  555),  when 
Johnson  is  told  to  come  "as  near  as  possible  to  the  Fundamental 
Constitutions."  In  1706,  the  South  Carolinians,  addressing  the 
House  of  Lords,  claimed  the  benefit  of  that  clause  in  the  Constitu- 
tions which  provided  for  liberty  of  conscience  (16.,  I.,  638-9). 

■  The  Constitutions  were  first  brought  into  Carolina  in  1670  by 
Sayle  (Hawks  :  Hist,  of  N.  C,  II.,  463).  It  is  difficult  to  say  who 
was  then  Governor.  At  a  meeting  on  Jan  20,  1670,  the  Palatine 
appointed  Samuel  Stephens  (Col.  Recs.,  I.,  180);  but  in  the  in- 
structions that  accompany  the  Constitutions  there  is  a  blank  land 

grant  dated  " Jan.,  1670,"  and  in  this,  Peter  Carteret  is  spoken 

of  as  Governor  (/&.,  I.,  183).  These  instructions  were  issued  at  the 
meeting  at  which  Stephens  was  appointed,  or  at  most  not  nioi*e  than 
eleven  days  later.  They  could  not  have  been  issued  earlier  than 
the  20th,  for  on  that  day  Berkeley  was  made  Palatine  and  he  is 
spoken  of  in  the  blank  grant  as  such.  The  only  reasonable  con- 
jecture that  does  not  countenance  an  error  in  the  instriictions,  is 
to  suppose  that  Stephens  was  appointed  but  not  yet  sworn  in,  and 
that  the  old  Governor,  who  seems  to  have  been  Carteret,  was  con- 
sidered as  still  the  incumbent.  There  are  certain  objections  to  this 
solution,  as  it  will  leave  us  under  the  necessity  of  believing  that 
Stephens  and  Carteret  each  held  the  office  for  two  distinct  terms 
(cf.  76.,  I.,  p.  xvi.). 

^  A  recent  writer  goes  so  far  as  to  say,  "The  Proprietors  organ- 
ized under  the  new  system  and  sent  directions  to  Governor  Stephens 
to  put  it  in  force  among  the  settlers  on  the  Chowan"  (Lodge  : 
Eng.  Colonies  in  America,  p.  137).  By  the  side  of  this  let  us 
place  the  real  instructions.  They  run  :  '*  Not  being  able  at  present 
to  put  it  fully  into  practice  by  reason  of  the  want  of  landgraves  and 
caciques  and  a  sufficient  number  of  people  ;  however,  intending  to 
come  as  nigh  as  we  can  in  the  present  state  of  affairs  in  all  the  col- 
onies of  our  said  province,  you  are  required,"  etc.  (Col.  Recs.,  I., 
181). 


The  Proprietors  and  the  Constitution.  43 

of  government.  Speaking  more  specifically,  we  may  note 
t^vo  effects:  (i)  They  precluded  the  introduction  of  local 
self-government,  a  fact  which  North  Carolina  had  reason  to 
regret  during  her  whole  colonial  period;  and  (2)  they  pro- 
duced confusion  in  the  minds  of  the  people  and  indirectly 
led  to  disregard  for  governors  and  government.' 


There  were  five  editions  of  the  Constitutions  :  (1)  the  orieinal 
draft,  signed  July  21. 1669  :  (2)  that  of  March  1. 1670.  a  slight  revisal  • 
(3)  that  of  January  12,  1682  ;  (4)  one  issued  at  some  unknown  date 
between  1682  and  1698 :  and  (5)  that  of  1698  (Hawks.  II.,  183-4,  and 
Ramsay:  Hist,  of  S.  C.  II..  123,  note).  The  last  was  verr  much 
altered  and  contained  but  fortr-one  articles  (see  Col.  Recs  "ll  ap- 
pendix). In  the  minds  of  the  North  Carolinians  there  seem  to  liave 
been  but  two  sets,  that  of  1669  and  that  of  1698.  both  of  which  appear 
to  have  been  received  in  North  Carolina  (Col.  Recs.,  III.  452-3) 
The  Lords  themselves  declared  that  the  copv  of  1682.  the  onlv  one 
?'°^cl^n?,^^  ^j?®  P^'oP^i^tors.  was  the  only  authentic  edition  (76., 
1.,  dbS).  The  Constitutions  were  translated  into  French  in  1682 
perhaps  for  the  use  of  the  French  settlers,  or  for  advertising  pur- 
poses {lb..  I.,  344).  ^ 


44      Constitutional  Beginnings  of  North  Carolina. 


CHAPTER  IV. 

The  Analysis  of  the  Constitution. 

The  remainder  of  our  task  will  be  to  trace  the  constitution 
as  it  actually  was.  This,  in  contradistinction  to  what  we 
have  just  called  the  theoretical  side  of  the  Proprietors'  gov- 
ernment, may  be  termed  the  practical  side.  We  shall  take 
up  its  parts  in  the  order  of  their  dignity,  beginning  with  the 
highest. 

Section  i. —  T/ie  Lords  Proprietors. 

Prior  to  1669  the  Lords  seem  as  a  body  to  have  had  no 
executive  organization.  In  October  of  that  year^  they  met 
and  organized  under  the  new  Constitutions.  The  six  Lords 
then  attending  were  elected  to  fill  the  positions  of  Palatine, 
High  Constable,  Chancellor,  Chief  Justice,  Admiral,  and 
High  Steward.*  There  is  no  evidence  that  either  of  these 
offices,  except  that  of  the  Palatine,  ever  meant  more  than  a 
new  title  to  the  name  of  him  that  filled  the  ofhce.  Yet  there 
was  a  show  of  keeping  them  up;  and  so  closely  were  they 
clung  to  that  in  1691,  when  the  government  was  reorganized, 
they  were  included  in  the  new  plan." 

The  Palatine,  however,  was  an  active  factor  in  government, 
and  was  continued  with  unimpaired  powers  till  the  Proprie- 
tary period  ceased.  He,  with  the  other  Proprietors,  consti- 
tuted the  Palatine's  Court,  the  only  one  of  the  Proprietors' 
courts  that  was  organized.  His  individual  power  was  small ; 
but  his  signature,  three  of  his  associates  consenting,  could 
efifect  almost  anything.     At  one  time  he  seems  to  have  had 


iCol.  Recs.,I.,  179. 

''On  account  of  the  absence  of  Clarendon  and  Sir  Wm.  Berkeley 
from  England,  two  offices  were  not  filled.  These  were  the  positions 
of  Treasurer  and  Chamberlain. 

3Jbid.,I.,373. 


The  Analysis  of  the  Constitution.  45 

the  right  to  name  the  Governor/  It  was  necessary  for  the 
Palatine  to  be  the  oldest  Proprietor,  and  this  was  regardless 
of  great  age  or  inferior  capacity.  By  this  means  the  Proprie- 
tors bound  themselves  almost  surely  to  forego  a  choice  of  the 
best  man,  and  made  it  extremely  likely  that  the  reins  of  gov- 
ernment should  always  be  in  the  hands  of  the  veriest  dotard 
of  their  number/ 

Section  ii. — T/ie  Govcr7ior. 

The  determining  of  the  policy  of  the  government  was  in 
the  hands  of  the  Proprietors;  but  since  they  could  not  be  on 
the  spot  themselves,  each  one  appointed  his  agent  or  Deputy 
to  represent  him.  As  the  Palatine  was  supreme  among  his 
associates,  so  his  Deputy  was  supreme  among  the  Deputies. 
This  Deputy  was  the  Governor,  sometimes  called  the  Deputy 
Palatine^  and  at  others  the  Vice-Palatine."  The  Fundamental 
Constitutions  did  not  specifically  recognize  the  office  of  Gov- 
ernor, the  Palatine  being  there  considered  the  head  of  affairs. 
The  Governor  was  distinctively  a  feature  of  the  makeshift 
constitution,  and  he  was  expected  to  give  place  to  the  Pala- 
tine in  that  day  when  the  province  should  be  perfectly  or- 
ganized under  the  scheme  of  Locke. 

The  Governor  had  for  colonial  purposes  the  general 
powers  of  the  Palatine.  He  could  exercise  but  few  functions 
except  with  the  consent  of  at  least  three  of  the  Deputies.  His 
chief  power  was  his  influence  as  titular  head  of  the  govern- 
ment and  representative  of  the  Proprietary  authority.  He 
was  not  fitted  to  have  a  conflict  with  the  people  or  with  any 


'  See  below,  p.  47. 

*  The  Constitutions  provided  that  the  eldest  Proprietor  in  Carolina 
should  be  Palatine.  Consequently  when  a  Lord  came  into  the 
colony,  he  could  without  a  commission  assume  the  duties  of  Vice- 
Palatine  or  Governor.  This  was  recognized  bv  the  Lords  in  1681, 
in  the  caseof  Sothel.  They  seem  to  have  receded  from  this  posi- 
tion in  1691  wlien  they  declared  :  "  No  Proprietor  single  by  virtue 
of  our  patent  hath  any  right  to  the  government  or  to  exercise  any 
jurisdiction  there  unless  empowered  by  the  rest"  (Col.  Recs.,  I., 
339  and  367). 

3  J7)7C?.,  I.,  180,  200.  "  Ihxd.,  I.,  345. 


46      Constitutional  Beginnings  of  North  Carolina, 

important  branch  of  the  administration,  because  when  men 
ceased  to  be  impressed  by  his  dignity  he  was  all  but  power- 
less. In  such  a  case  he  was  fortunate  if  he  could  prevent  his 
enemies  from  securing  his  removal.  If  the  Council  should 
be  opposed  to  him  he  could  do  but  little.  Through  his  con- 
ciliatory efforts,  or  through  a  unity  of  interests  with  the  Pro- 
prietors, the  Governor  usually  managed  to  steer  clear  of 
hostility  from  his  brother  Deputies,  but  he  was  not  always 
so  fortunate  in  reference  to  the  representatives  of  the  people. 
The  most  important  function  left  to  the  Governor  inde- 
pendent of  his  Council  was  the  right  to  concur  in  all 
measures,  either  of  the  Council  or  of  the  Assembly.  Thus 
he  was  equal  in  power  to  each  of  these  bodies.  He  also 
called,  and  presided  over,  the  meetings  of  the  Council.  He 
was  commander-in-chief  of  the  colonial  militia,  and  of  his 
own  authority  appointed  the  subordinate  officers.  In  1697, 
when  England  determined  to  establish  admiralty  courts  in 
the  proprietary  colonies,  the  Governor  of  North  Carolina 
was  made  Vice-Admiral,^  and  from  that  time  his  official  title 
was  "  Governor,  Commander-in-Chief,  and  Vice-Admiral." 
He  also,  in  the  presence  of  the  Council,  administered  to  the 
higher  officers  of  government  the  oaths  of  fidelity  and  alle- 
giance to  the  king  and  the  Proprietors.  He  issued  writs  for 
the  election  of  delegates,  when  directed  to  do  so  by  the  Pro- 
prietors or  by  the  Council.'  He  had  the  execution  of  gen- 
eral orders,  as  enforcing  the  Navigation  Act;  received  at 
times  the  probate  of  wills  and  granted  letters  of  administra- 
tion;* conducted  business  between  the  government  and 
other  colonies,  calling  on  the  Council  at  times  for  advice; 
and  had  the  care  of  such  minor  matters  as  taking  a  census, 
measuring  the  water  on  the  bars,  and  making  a  map  of  the 
country.     At  first,  and  for-  some  time,  he  was  directed  to  have 


'Col.  Recs.,  I.,  473.  *Col.  Recs.,  I.,  181. 

^In  the  latter  part  of  the  Proprietors'  rule  the  Assembly  met  of 
right  biennially,  and  the  writs  were  issued  then  at  the  decision 
of  the  Council. 

^Lawsof  1715,  oh.  48. 


The  Analysis  of  the  Constitution.  47 

passed  in  the  Assembly  certain  laws  that  pleased  the  Pro- 
prietors/ For  about  forty  years  he  sat  as  President  of  the 
General  Court,'  and  had  chancery  jurisdiction.  Convicted 
persons  could  be  reprieved  by  him  pending  an  appeal  to  the 
Proprietors. 

The  Governor  was  appointed  by  the  Proprietors  until 
1691/  when  he  was  supplanted  by  a  Deputy  Governor  ap- 
pointed by  the  Governor  of  Carolina,  who,  it  was  agreed, 
should  be  appointed  by  the  Palatine.^  The  Deputy  Governor 
could  be  removed  by  the  Governor  of  Carolina  either  at  the 
will  of  the  latter  or  by  the  directions  of  the  Proprietors."  The 
oldest  Proprietor  in  North  Carolina  might  take  the  office  of 
Governor,  being  thought  to  have  the  right  to  supersede  any 
Deputy.  Such  a  Governor  did  not  have  to  be  approved  by 
the  king,  as  was  necessary  with  any  other  kind  of  a  Gov- 
ernor," but  still  could  be  removed  by  the  Proprietors. 

At  first  no  bond  was  required  of  the  Governor,  but  when 
great  complaint  was  made  to  the  Crown  in  regard  to  illegal 
trade  in  North  Carolina  it  was  decided,  in  1697,  that  the 
Deputy  Governor  should  give  bond  for  enforcing  the  Navi- 
gation acts.  At  first  it  was  expected  that  the  Lords  them- 
selves should  give  bond  for  their  officer,  but  they  protested 
that  they  ought  not  to  be  expected  to  do  this,  for  the  de- 
cision' '*  placed  the  approbation  of  their  Governors  in  His 


'  Col.  Recs. ,  I. ,  231.  =  See  below,  p.  66. 

2  The  instructions  of  1665  gave  larger  powers  to  the  Governor  than 
were  granted  in  and  after  1670.  In  addition  to  the  privileges  just 
named,  he  could  appoint  his  own  Council,  nominate  the  Secre- 
tary or  Surveyor-General  in  case  the  Lords  failed  to  select  them,  and 
preside  in  person,  or  by  deputy,  over  the  Assembly,  which  was 
then  unicameral  (Col.  Recs.,  I.,  79-92). 

*  Philip  Ludwell,  the  first  Governor  of  Carolina,  was  thus  ap- 
pointed (lb.,  I.,  373).  We  have  not  seen  the  commission  of  Smith, 
his  successor,  but  Archdale,  who  came  next  (1694),  was  appointed 
by  all  the  Proprietors  {lb.,  I.,  389),  and,  so  far  as  the  records  testify, 
so  were  his  successors. 

'  The  Governor  of  Carolina  might  be  removed  by  the  Palatine  and 
three  of  the  Proprietors,  or  by  six  of  the  Proprietors  without  the 
consent  of  the  Palatine  {lb.,  I.,  374). 

«7Wd.,  I.,  .510. 

■'  This  decision  was  an  Act  of  Parliament,  whose  direct  jurisdiction 
extended  in  the  colonies  to  matters  of  trade  (lb.,  I.,  476,  477). 


48      Constitutional  Beginnings  of  North  Carolina. 

Majesty."  In  the  matter  of  trade,  Parliament  and  the  Crown 
were  jealous  of  the  powers  of  the  Proprietors,  and  interfered 
to  secure  the  proper  collection  of  the  customs.  The  king 
did  not  hesitate  to  instruct  the  Governor,  through  the  Pro- 
prietors, by  what  means  he  was  to  execute  these  laws.'  Ed- 
ward Hyde,  the  first  Governor  of  North  Carolina  after  1691, 
is  the  first  whom  we  know  to  have  given  bond.  The  amount 
of  the  bond  in  other  colonies  was  two  thousand  pounds,  but 
because  North  Carolina's  trade  was  inconsiderable,  one 
thousand  was  thought  sufficient  for  Hyde.' 

Except  in  the  case  of  Drummond,  the  first  Governor,  the 
tenure  of  office  was  during  the  pleasure  of  the  Proprietors." 
The  salary  was  at  first  rather  uncertain.  Governor  Drum- 
mond, the  Proprietors  suggested,  might  be  paid  with  a  mo- 
nopoly of  the  fur  trade,  but  there  is  no  evidence  that  Berkeley 
put  this  idea  into  practice."  In  1669  the  Assembly  enacted 
that  thirty  pounds  of  tobacco  should  be  paid  by  him  who 
"  was  cast "  in  each  suit  before  the  Governor  and  Council. 
This  was  not  a  salary  for  the  Governor,  but  simply  the  fees 
which  the  Governor  and  Council  collected  as  officers  of  the 
court."  As  early  as  1686  the  Governor  of  the  southern  colony 
was,  we  know,  receiving  two  hundred  pounds  a  year,"  and  it 
is  therefore  not  likely  that  the  Governor  of  Albemarle  was 


1  Col.  Recs. ,  I. ,  492,  496.  '  Ibid. .  I. ,  773. 

3  Dr.  Hawks  (Vol.  II.,  pp.  142-3)  says  the  Governor  was  to  "  rule 
three  years  and  then  learn  to  obey."  This  is  hardly  correct. 
Berkeley  was  instructed  to  appoint  a  Governor  for  three  years 
(Col.  Recs.,  I.,  52),  and  appointed  Drummond,  doubtless  for  three 
years.  Yeamans,  who  was  appointed  Governor  of  Clarendon  in 
1665.  was  to  hold  'vluring  pleasure"  (76.,  I.,  95.  97).  Samuel 
Stephens,  Drummond's  successor,  appointed  in  1667,  held  in  the 
same  manner  {lb.,  I.,  162),  and  so  did  all  the  other  Governors 
whose  commissions  we  have.  Dr.  Hawks's  error  was  doubtless 
due  to  certain  advertisements  of  the  Clarendon  colony,  published 
in  1663  and  in  1666,  in  which  such  a  statement  as  he  quotes 
was  actually  made  {Jb.,  I.,  pp.  43.  154,  157).  This  scheme  to  sell 
land  could  have  no  constitutional  importance,  for  the  Governor  of 
Clarendon  was  in  1666  holding;  under  a  "during  pleasure"  com- 
mission. One  cannot  fail  to  notice  also  the  bad  policy  in  making  a 
Governor  rule  first  and  then  ''  learn  to  obey."  In  ordinary  systems 
it  is  wise  to  make  him  ''•  learn  to  obey  "  before  he  rules. 

^Col.  Recs.,I.,52.  ^ 7;,^^.,  i.,  i85.  «  7&id.,  L,  391. 


The  Analysis  of  the  Constitution.  49 

without  any  salary.'  We  arrive  at  definite  information  in 
171 1,  when  Edward  Hyde's  salary  was  two  hundred  pounds 
a  year.  Governor  Eden's  was  three  hundred  pounds.'  This 
seems  to  have  been  voted  to  each  new  incumbent  for  his 
term  of  office  by  the  Council.^  It  was  paid  in  quarterly 
payments  out  of  the  funds  arising  from  the  sale  of  lands  and 
from  the  quit-rents. 

If  the  office  became  vacant  through  the  death  or  absence 
of  the  Governor,  the  oldest  member  called  the  Council  to- 
gether to  elect  a  President  of  the  Council,  who  administered 
the  government  until  superseded  by  a  Governor  regularly 
appointed  by  the  Proprietors.^  The  President  received  the 
salary  that  it  was  customary  to  pay  to  the  Governor."  While 
the  colony  was  under  the  direction  of  a  Deputy  Governor, 
Harvey,  the  incumbent,  died.  Henderson  Walker,  as  Presi- 
dent of  the  Council,  succeeded  him,  and  for  five  years  guided 
the  affairs  of  the  province  so  much  to  the  liking  of  the  people 
that  in  1706  the  popular  party  induced  the  Proprietors  to  con- 
sent to  having  the  government  again  under  a  President.*  So 
much  confusion  arose  from  the  attempt  to  enforce  this  con- 
cession that  the  Lords  thought  it  advisable  to  return  to  the 
original  method.' 

When  a  newly  appointed  Governor  arrived  he  presented 
his  commission  to  the  assembled  Council,  who  published 
and  recorded  it.  He  then  took  the  oaths  of  office  and  occu- 
pied his  seat  as  presiding  ofificer  of  the  Council.*  In  the  eyes 
of  the  Proprietors,  considerable  dignity  was  attached  to  this 
seat.  Sir  Peter  Colleton,  writing  to  the  Governor  in  1683, 
reminds  him  of  his  power  in  the  Council  and  the  Assembly, 
and  says :  "  You  ought  to  keep  good  order  in  the  debates  of 


'  Edward  Randolph  said  that  in  1691  the  Deputy  Governor  of 
North  Carolina  had  no  salary  ;  but  as  Eandolph  mentions  him  as 
"  one  Jarvis,"  a  name  unknown  in  the  records  of  the  time,  some 
doubt  is  thrown  on  the  entire  statement  (Col.  Recs.,  I.,  467). 

» Ibid. ,  II. ,  1 70.  =  Ihid. .  II. ,  450,  460. 

*  Ibid. ,  I. ,  790,  and  II. ,  460.  *  Ibid. ,  II. ,  460. 

•76td.,I.,709.  ■'/Wd.,  I.,750.  » J6id.,  I.,  841. 


50      Constitutional  Beginnings  of  North  Carolina. 

the  Council  when  any  one  speaks  he  ought  to  do  it  with  his 
hatt  off  and  with  the  respect  due  to  the  place  who  are  there 
a  representative  of  the  Palatine  and  by  consequence  the 
king  from  whence  the  Palatine's  power  is  originally  derived 
and  it  was  in  Culpepper's  case,  who  made  a  disturbance 
in  Albemarle  in  Carolina  for  which  he  was  indicted  of  high 
treason  at  the  King's  Bench  Barr  declared  to  be  treason  for 
any  man  to  take  up  arms  against  our  government,  it  being 
levying  warr  against  our  king."^  It  must  be  confessed,  how- 
ever, that  if  Sir  Peter's  knowledge  of  Proprietary  law  was  as 
limited  as  his  knowledge  of  the  art  of  writing  clear  English, 
his  opinion  is  of  but  little  value. 

Section  hi. — T/te  Cou7icil. 

In  regard  to  membership,  the  history  of  the  Council  in 
Proprietary  North  Carolina  divides  itself  into  four  periods. 
In  the  first  there  were  six,  eight,  ten  or  twelve  members  who 
were  selected  by  the  Governor.  This  period  ended  with  the 
temporary  constitution  of  1670,  when  the  Council  was  made 
to  consist  of  the  five  Deputies,  who  represented  the  colonial 
nobility,  and  five  additional  members  elected  by  tlie  Assem- 
bly. The  latter  represented  the  people.  The  third  period 
began  in  1691,  when  the  Council  was  composed  entirely  of 
the  Deputies.  Finally,  a  last  change  was  made  in  1724,' 
when  the  Deputies  were  abolished  and  the  membership  was 
fixed  at  twelve,  or  less,  all  of  whom  were  appointed  by  the 
Proprietors. 

If  the  powers  of  the  Governor  independent  of  the  Council 
were  small,  those  of  the  Council  independent  of  the  Gov- 
ernor were  still  smaller.  Its  right  to  disagree  with  a  propo- 
sition of  the  Governor  seems  to  have  been  rarely  exercised. 
As  among  the  Proprietors  there  was  a  strong  reluctance  to 
merge  the  wishes  of  the  individual  Lords  into  the  will  of  the 


'Col.  Recs.,I.,345. 

-JWd.,  II..  515.    The  Lords  decided  to  introduce  this  feature  in 
1718(J6id.,IL,299). 


The  Analysis  of  the  Constitution.  51 

Palatine,  so  there  was  among  the  Deputies  a  disposition  for 
each  to  act,  not  for  the  colony,  but  for  the  interest  of  his 
chief. 

The  powers  of  the  Governor  and  Council  when  acting  to- 
gether were,  however,  considerable.  They  varied  with  the 
changes  in  the  constitution.  During  the  first  period,  when 
the  colony  was  small  and  the  Assembly  met  annually,  many 
matters  could  be  carried  to  the  legislature  which  would 
otherwise  have  gone  before  the  Council.  In  the  recess  of 
the  Assembly  the  Council^  had  most  of  the  executive  powers. 
It  appointed  the  officers  of  all  courts  erected  by  the  Assem- 
bly, and  could  suspend  temporarily  an  officer  appointed  by 
the  Proprietors.  It  could  punish  all  officers,  civil,  religious 
or  military,  who  violated  their  trusts.  It  issued  and  revoked 
commissions  to  military  officers,  granted  reprieve,  subject  to 
tlie  final  action  of  the  Lords,  issued  warrants  for  land  grants, 
saw  that  settlers  had  the  common  personal  and  property 
rights  of  Englishmen,  and  did  anything  else  that  was  not 
affixed  to  some  other  organ  of  government.' 

In  the  second  period  the  Council  underwent  a  peculiar 
change.  Two  institutions  now  performed  the  functions  of 
the  older  Council.  These  were  the  Council  and  tlie  Deputy 
Palatine's  Court.  The  membership  of  the  former  we  have 
already  stated ;  the  latter  was  composed  of  the  Governor  and 
the  five  Deputies."  Both  bodies  were  provided  for  in  the 
Fundamental  Constitutions,  although  they  were  now  changed 
as  to  make-up. 

The  Council,  or  Grand  Council,  as  it  was  at  times  called, 
was  intended  to  be  a  semi-popular  institution.  It  was  a 
makeshift  for  the  Grand  Council  of  the  Constitutions,  and 
was  endowed  with  all  the  powers  of  its  model.  It  could  de- 
cide disputes  as  to  jurisdiction  and  procedure  in  the  lower 
comts;  declare  war  against  the  Indians,  and  make  treaties  of 


'After  this  when  we  use  the  term  "Council"  we  mean,  unless 
otherwise  designated,  the  Governor  and  Council. 
'See  for  this  period.  Col.  Recs.,  I.,  79-92. 
'  So  far  as  we  know  there  were  no  Deputies  till  1670. 


52      Constitutional  Beginnings  of  North  Carolina. 

peace,  alliance  and  commerce  with  the  same;  levy  military- 
forces  ;  prepare  all  bills  that  were  to  come  before  the  Assem- 
bly; decide  matters  relating  to  the  Proprietors  or  to  the 
Deputies;  expend  money  voted  for  specific  purposes  by  Par- 
liament; and  register  the  appointed  Deputies/  On  it  was 
conferred  as  a  temporary  matter  the  authority  to  establish 
such  courts  as  the  Council  "  for  the  present  time  think  fit  for 
the  administration  of  justice,  till  our  Grand  Model  of  Gov- 
ernment can  come  to  be  put  into  execution."''  To  this  was 
added  the  function  of  warrants  for  issuing  land  grants.  Fi- 
nally, the  Governor  was  instructed  to  "goveme"  witli  the 
Council — whatever  that  term  may  have  been  held  to  mean. 

One  who  reads  casually  the  instructions  to  the  Governors 
of  this  time  will  be  apt  to  imagine  that  the  Deputies  acted 
only  as  a  part  of  the  Council.  Such  is  not  the  case.  They 
were  authorized  to  represent  the  Palatine's  Court  of  the  Con- 
stitutions, and  were  thus  empowered  to  convene  tlie  Assem- 
bly, to  pardon  offenses,  to  elect  to  offices  in  the  Palatine's 
disposal,  to  erect  ports  of  entry,  to  expend  funds,  except 
those  granted  by  the  Assembly  for  specific  purposes,  to  nega- 
tive acts  of  the  Grand  Council  and  of  the  Assembly,  and  to 
have  all  powers  not  otherwise  granted  which  under  the  royal 
grant  belonged  to  the  Proprietors.'  By  the  temporary^  ar- 
rangement they  were  given  the  power  to  consent  to  legisla- 
tion.* Later  on  they  had  acquired  the  right  to  decide  certain 
questions  relating  to  land  grants,  as  well  as  to  adjourn,  pro- 
rogue, or  dissolve  the  Assembly." 

The  latter  of  these  two  bodies  was  by  nature  the  stronger. 
Apart  from  the  fact  that  it  represented  the  Proprietary  in- 
terest, it  actually  controlled  the  Council;  for,  it  will  be  re- 
membered, the  Deputies  and  the  Governor  constituted  a 
majority  in  that  body.  That  the  stronger  should  have 
usurped  the  properties  of  the  other,  and  the  weaker  should 
have  become  atrophied,  is  but  natural.     Accordingly,  we  find 

'  Col.  Recs.,  I.,  196-7.  ^  Ibid.,  I.,  182.  ^  Ibid,  I.,  193. 

*  Ibid. ,  I. ,  183.  'Ibid.,  I.,  239. 


The  Analysis  of  the  Constitution.  53 

that  in  1691  the  Proprietors  realized  that  the  function  of  pro- 
posing laws  was  all  that  was  left  to  the  Council,  and,  since 
the  people  petitioned  against  the  exercise  of  this  function, 
they  abohshed  the  Grand  Council  altogether,"  and  reor- 
ganized their  Deputies  into  wliat  we  have  called  the  Council 
of  the  third  period.' 

By  the  beginning  of  the  third  period  the  usurpation  of  the 
Deputies  became  complete-  What  had  been  before  a  tem- 
poran.-  Palatine's  Court  was  now  called  a  Council.  In  North 
Carolina,  which  was  left  to  be  reorganized  as  the  Governor 
of  Carolina  saw  fit,  there  seems  to  have  been  little  change  in 
the  machiner}'  of  government  The  change  in  the  title  of  the 
Council  came  gradually.  As  late  as  December  9,  1696,  the 
Council  that  met  Archdale  at  the  house  of  Francis  Jones  was 
called  the  Palatine's  Court'  0\\"ing  to  a  dismal  lack  of 
documents  on  this  period  we  do  not  know  just  when  the 
change  was  completed.  Judging  from  the  powers  held  when 
we  do  get  definite  information,  one  would  say  that  all  the 
functions  which  were  possessed  by  the  two  older  bodies  were 
given  to  the  one  new  institution,  except,  of  course,  the  pre- 
paring of  laws. 

In  the  fourth  period  there  is  no  constitutional  change  ex- 
cept as  to  membership.  In  the  latter  half  of  the  preced- 
ing, and  in  all  of  this,  period  the  records  of  the  Coimcil  are 
well  presers'ed.  From  these  we  are  struck  \\\xh  the  larg« 
amount  of  judicial  business  done  by  the  Council.  It  had 
much  to  do  -^-ith  lapsing  the  grants  of,  and  issuing  new 
patents  for,  land ;  and  occasionally  it  probated  wills.  By  this 
it  will  be  seen  that  it  was  a  regular  court  of  record.* 


'Col.  Recs..  I..  381. 

*It  is  improbable  that  either  Council  or  temporarv  Palatine's 
Court  exercised  all  the  p<")wers  implied  in  constructing  them  like 
the  two  features  of  the  Constitutions.  The  impossibility  of  intro- 
ducing this  instrument  would  prevent  this  :  besides,  the  Proprietors, 
being  supreme  over  both  institutions,  did  not  hesitate  to  take  to 
themselves  such  business  as  they  could  handle  better. 

»Col.  Recs..  I..  472. 

*  For  treatment  of  the  Council  as  a  court,  see  below,  p.  71. 


54      Constitutional  Beginnings  of  North  Carolina. 

The  most  considerable  of  all  its  rights  was  the  appointing 
of  all  those  officers  not  named  by  the  Proprietors.  The 
effect  of  this  w^as  to  place  for  a  time  the  disposition  of  ever>' 
higher  office,  except  the  delegates  to  the  Assembly,  in  the 
hands  of  the  central  power,**  The  Coimcil  appointed  the 
associate  justices  of  the  General  Court,  Justices  of  the  Peace 
in  the  Precincts,  the  Sheriff,  or  Provost  Marshal.  In  addi- 
tion it  could  fill  temporarily  any  vacancy  that  was,  of  right 
in  the  hands  of  the  Lords. 

The  Council  sat  as  the  Upper  House  of  the  Assembly.  In 
this  capacity  its  authority  extended  to  any  act  of  the  Lower 
House,  except  to  the  passing  of  the  budget,  which  seems  to 
have  been  beyond  their  interference."  Now,  as  at  other 
times,  it  was  presided  over  by  the  Governor,  who,  however, 
had  no  vote  in  making  a  majority.  All  the  members,  includ- 
ing the  Governor,  received  a  salary  equal  to  that  of  the 
members  of  the  Lower  House.  For  the  time  it  was  the 
Upper  House ;  it  had  a  Secretar\' — ^who  was  the  regular  Sec- 
retary of  the  Province  and  of  the  Council — a  Doorkeeper, 
and  a  Alessenger.'  These  officers  were  chosen  by  the  Upper 
House,  and  corresponded  to  the  officers  of  the  other  house. 
Each  set,  taken  severally,  received  the  same  salar}-.  When 
sitting  as  a  Council  merely  it  had  a  ]Messenger,  who  received 
an  annual  salary  of  twent}-^  pounds.* 

In  1722,  on  receiving  directions  from  the  Palatine,  the 
Chief  Justice  of  the  colony  was  allowed  by  virtue  of  his 
office  to  sit  as  a  Councillor,  his  rank  being  next  to  that  of  the 
head  of  the  government.'  In  1727  the  Sun-eyor-General  of 
His  Majesty's  Customs  in  America  was  also  declared  entitled 
to  sit  in  the  Council  of  any  colony  in  which  he  might  be.* 


'  Rpgistrars  of  precinct  courts  were  conditionally  elective  by  the 
people. 

*  This  assertion  is  based  on  the  minutes  of  the  Assembly.  Here, 
while  various  other  acts  are  sent  to  the  Upper  House  for  concur- 
rence, no  reference  is  made  to  such  an  action  in  regard  to  the  money 
bill  (Col.  Recs..  II..  675). 

"Col.  Recs.,  II.,  623. 

*  Ibid.,  II.,  607.  '  Ibid.,  II.,  460.  *  Ibid..  II.,  673. 


The  Analysis  of  the  Constitution.  55 

The  power  of  removing  a  Councillor  was  always  in  the 
hands  of  the  Lords.  If  a  Deput>-  should  die  or  leave  the 
province,  the  Governor  and  Council  could  appoint  another 
to  hold  till  the  Proprietors  named  some  one  else.  A  Coun- 
cillor thus  appointed  could  perform  all  the  duties  of  Dep- 
uties, except  to  vote  for  a  man  to  fill  a  similar  vacancy.  One 
could  do  this  only  when  confirmed  under  the  seal  of  the  said 
Lord.^  Until  1718  the  Councillors  met  at  their  o\nti  expense. 
In  that  year  they  agreed  that  for  the  future  the  necessan.^  ex- 
penses of  the  meeting  should  be  defrayed  from  tlie  funds  in 
the  hands  of  the  Receiver-General.' 


Section  iv. — T/u  Assembly. 

The  General  Assembly  is  the  title  by  which  the  legislative 
body  of  North  Carolina  \vas  usually  kno\sTi,'  although  at 
times  we  find  the  expression  "  Grand  Assembly."  It  first 
convened  in  1665.*  but  under  what  system  we  cannot  say. 
We  do  know  that  the  instructions  sent  to  Sir  William  Berke- 
ley, who  was  authorized  to  settle  the  government  of  Albe- 
marle, empowered  "  the  Governor  and  freemen,  or  the  major 
part  of  them,  the  deputies  or  delegates,  to  make  good  and 
wholesome  laws "  for  the  colony.  Later  on  instructions 
were  sent  directly  to  Drummond/  but  they  are  not  preserved. 
Under  which  of  tliese  the  first  Assembly  met  we  do  not 
know. 

We  come  to  firm  ground  with  the  Concessions  of  1665.* 
It  is  from  this  point  that  our  definite  knowledge  of  the  his- 
torv'  of  the  Assembly  begins.  The  Assembly,  it  •was  de- 
clared, should  be  unicameral,  and  composed  of  the  Governor, 
the  Council,  and  twelve  delegates  of  the  people.     As  soon  as 


'  Col.  Recs..  I..  375.  *  JWd..  H..  323.  =  Ihxd..  I..  Si. 

*See  Weeks:  "'William  Drumniond.''  yational  Mag..  Apr.,  '92. 
If.  as  was  likely.  Drumtuond's  instructions  (Col.  Recs..  I..  93)  were 
similar  to  the  Concessions  of  1665.  the  Assembly  must  have  met  in, 
or  soon  after,  January  of  this  year  ;  for  by  the  Concessions  the  elec- 
tion of  delegates  was  held  January  1st. 

*/Wd.,I.,93.  '  .  *  Ibid..  I., 19. 


56      Constitutional  Beginnings  of  North  Carolina. 

the  county  could  be  divided  into  precincts,  the  inhabitants 
were  to  meet  on  the  first  day  of  each  Januarj-  to  elect  two' 
delegates  from  each  precinct,  a  majority  of  tliese  delegates 
being  necessary  to  transact  business.  The  Governor,  or  his 
Deputy,  ought  to  preside,  but  if  neither  of  these  could  be  in- 
duced to  be  present  the  body  could  choose  its  own  president. 

Left  as  it  was  under  Proprietar}^  influence,  the  Lords  seem 
to  have  thought  it  safe  to  confide  to  this  body  extensive 
powers.  Accordingly,  it  had  the  right  to  appoint  its  own 
time  of  meeting;  to  adjourn  from  time  to  time,  or  from 
place  to  place ;  to  make  laws,  provided  they  were  not  contrary 
to  reason,  to  the  interests  of  the  Proprietors,  or  to  anything 
otherwise  stipulated  in  the  Concessions,  and  provided  they 
were  as  nearly  as  possible  conformable  to  the  laws  of  Eng- 
land; to  establish  courts  of  justice;  to  lay  taxes  on  all  prop- 
erty but  the  unsettled  lands  of  the  Proprietors;  to  erect 
baronies,  manors,  precincts,  and  other  political  divisions;  to 
establish  ports  of  entry;  to  provide  military  defense;  to  in- 
corporate towns;  to  naturalize  foreigners;  on  certain  condi- 
tions to  prescribe  the  quantity  of  land  allotted  and  the  man- 
ner of  allotting  it;  to  appoint  such  ministers  of  religion  as 
should  be  provided  for;  and  to  determine  its  own  quorum, 
provided  it  were  not  less  than  one-third  of  the  whole.  The 
laws  when  passed  by  the  Assembly  and  signed  by  the  Gov- 
ernor and  three  Deputies  were  published  and,  unless  vetoed 
by  the  Proprietors,  remained  in  force  one  and  one-half  years. 
If  the  Lords  approved  them  they  were  in  force  till  repealed, 
or  till  they  expired  by  their  own  provisions. 

The  Concessions  were  copied  and  sent  out  in  1667  as  Gov- 
ernor Stephens'  instructions.^  They  remained  in  practice 
till  1670. 

By  the  temporary  constitution  of  1670  Albemarle  wzs 
divided  into  four  precincts, — Chowan,  Perquimans,  Pasquo- 


*  The  Concessions  omit  the  word  '"two,"  evidently  by  oversight  ; 
but  the  instructions  to  Governor  Stephens  (1667).  otherwise  exactly 
the  same,  supply  it  (Col.  Recs.,  I.,  167). 

»Jbi"d.,I.,  167. 


The  Analysis  of  the  Constitution.  57 

tank,  and  Currituck, — each  of  which  had  five  delegates  in  the 
Assembly.  The  twenty  representatives  and  the  five  Depu- 
ties— who  now  for  the  first  time  appear — made  up  the  As- 
sembly. As  soon  as  they  met  they  elected  a  Speaker,  and 
that  being  done,  they  chose  tlie  five  persons  who,  with  the 
Deputies,  made  the  Council. 

In  the  presence  of  such  an  effective  engine  of  the  Proprie- 
tary  influence  as  the  Deputies,  it  is  but  natural  tliat  the  As- 
sembly should  have  lost  some  of  its  former  powers  for  the 
benefit  of  the  new  institution.  The  spirit  of  tlie  new  form  of 
government  was  predominantly  proprietary.  The  immediate 
effect  on  the  Assembly  was  to  make  it  but  little  more  than  a 
tool  of  the  Proprietors.  Its  chief  function  was  now  legisla- 
tive. The  Governor,  "  by  and  with  the  consent  of  the  As- 
sembly," made  such  laws  as  he  saw  fit.  All  laws  must  be 
signed  by  the  Governor  and  three  of  the  Deputies,  after 
which  they  remained  in  force  two  years  unless  repealed  by 
the  Proprietors.  If,  however,  they  were  confirmed  by  the 
Lords  they  remained  good  laws  until  repealed  by  the  Assem- 
bly or  until  they  expired  by  limitation. 

The  Fundamental  Constitutions'  provided  that  the  Assem- 
bly should  meet  biennially,  and  gave  it  the  right  to  convene 
without  the  call  of  the  Governor.  The  temporar}-  constitu- 
tion, however,  simply  directed  each  Governor  in  turn  to  call 
an  Assembly  "  as  soon  as  conveniently  you  can  after  the 
receipt  of  these  instructions."  There  is  nothing  further  in 
the  instructions,  but  we  know  that  in  the  latter  part  of  the 
centur}'  the  Assemblies  became  almost  regularly  biennial,  a 
circumstance  which,  though  not  evidenced  by  formal 
records,  is  well  attested  by  numerous  allusions  in  the  corres- 
pondence of  the  time. 

The  changes  of  1691  made  actually  apparent  what  had 
before  been  in  the  earlier  stages  of  development;  they  com- 
pleted the  evolution  of  the  Upper  House.  By  the  provision 
of  the  temporary  constitutions  of  1670  the  Deputies  and  the 

'Col.  Recs.,  I.,  199,  201,  §§71-80. 


58      Constitutional  Beginnings  of  North  Carolina. 

representatives  had  composed  the  Assembly;  from  which,  as 
it  seems,  the  Governor  was  excluded.  This  left  the  consent 
of  the  Governor  and  three  Deputies  to  all  laws  an  affair 
entirely  out  of  the  Assembly.  From  the  custom  of  the  Gov- 
ernor and  Deputies  meeting  to  consider  the  measures  of  the 
larger  body  grew  the  distinct  organization  of  the  Upper 
House.  This  growth  was  accompanied  by  the  gradual  drop- 
ping of  Deputies  from  the  Lower  House,  as  we  shall  now 
venture  to  call  it.  This  process  was  complete,  and  formally 
recognized  by  the  Proprietors  in  1691. 

A  few  years  later,  in  1696,  the  region  to  the  south  of  Albe- 
marle was  erected  into  Bath  coimt}"  and  given  two  represen- 
tatives in  the  Assembly.^  Nine  years  later  it  was  divided 
into  three  precincts,  each  of  which  was  allowed  tv^'O  dele- 
gates.' In  1722  Bertie  precinct  in  Albemarle  was  created 
and  given  two  delegates.  This  made  a  membership  of 
twent}-eight  in  the  General  Assembly,  the  highest  point 
reached  during  the  Proprietar}-  period. 

By  the  time  of  the  Carey  RebelUon,  the  Assembly  had  ac- 
quired considerable  importance.  It  was  no  longer  over- 
shadowed by  the  Proprietar\-  interests.  Free  from  the  re- 
striction which  came  from  giving  tiie  initiative  in  legislation 
to  the  Governor  and  Council,'  it  now  began  to  develop  in 
dignit>'  and  power,  until  it  may  be  said  to  have  been  at  length 
the  chief  factor  in  government.  Through  this  process  the 
Lower  House  gained  the  ascendancy,  becoming  practically 
the  entire  Assembly.* 

This  increased  authorit}^  is  shown  by  the  part  the  Lower 
House  took  in  the  troubles  arising  from  the  Carey  Rebellion. 
In  1738  Glover  and  Carey,  the  rival  claimants  to  the  gov- 
ernorship, agreed  to  refer  their  claims  to  this  body  for  arbitra- 
ment;°  and  in  171 1,  when  it  was  necessary  that  some  part  of 
the  government  should  be  found  strong  enough  to  settie  the 


'  Col.  Recs.,  I.,  472.  'Ibid..  I.,  629.  ^/Wd.,  I.,  381. 

*From  the  Carey  Rebellion  to  the  close  of  the  Proprietary  period 
the  Lower  House  seems  to  have  had  more  power  than  it  was  allowed 
in  the  succeeding  Royal  period. 

^Col.  Recs..  I.,  697. 


The  Analysis  of  the  Constitution.  59 

affairs  of  the  colony,  the  Assembly  came  to  the  front  as  the 
regulating  authorit}'.  Its  exercise  of  power  indicates  its 
supremacy.  It  assumed  to  arrest  Carey,^  and  dared  to  nullify 
all  laws,  judgments  and  other  acts  of  government  that  had 
been  made  in  the  last  two  years,  except  marriages,  probates 
of  wills,  letters  of  administration,  sales  and  conveyances  of 
lands  when  made  between  residents,  provings  of  right  to  land, 
contracts  and  bargains.'  Besides  this,  it  attempted  to  regu- 
late the  future.  It  provided  by  act  for  the  punishment  of 
sedition,  made  regulations  for  qualifying  officers,  fixed  the 
penalty  for  changing  the  oath  of  office,  recognized  the  cc«n- 
mon  law  of  England  in  XorLh  Carolina  courts,  adopted  cer- 
tain statutes  of  the  British  Parliament,  settled  the  manner  of 
filling  vacancies  in  the  places  of  Governor  and  of  Lord's 
Deputy,  and  in  the  way  of  private  bills  provided  for  settling 
claims  arising  from  alleged  irregularities  in  Moseley's  ad- 
ministration of  the  office  of  Sun^eyor-General.  To  this  it 
added  an  address  to  the  Lords,  in  which  were  stated  calmly 
and  intelligently  the  \'iews  of  the  Assembly  on  the  existing 
condition  of  government.  The  people  of  North  Carolina 
had  spoken  to  the  Proprietors  before  this,  but  usually  to 
complain  of  grievances  in  the  way  of  harsh  laws  or  unscrupu- 
lous officers.  Now  they  appeared  in  a  constructive  capacity. 
The  Assembly  passed  from  an  almost  continual  opposition 
body  to  what  we  may  call  a  body  of  friends  to  the  administra- 
tion. There  was  in  this  change  a  marked  advantage  to  the 
colony.  Aside  from  whatever  sentiment  we  may  have  for 
Moseley  and  the  "  popular  partv^''  we  cannot  fail  to  notice 
that  the  triumph  of  Pollock  and  his  friends  brought  with  it 
the  confidence  of  the  Proprietors  in  the  Assembly,  and  this, 
we  know,  led  to  many  wnse  laws  and  wnthal  to  a  long  period 
of  peace,  prosperity  and  real  constitutional  growth.  Neither 
Carey  nor  his  followers  could  have  brought  about  this  result. 
The  real  interests  of  the  colony  both  at  home  and  abroad 
demanded  a  conservative  policy.  That  is  what  the  dominant 
party  pursued. 

'Col.  Recs..I.,780.  * 7 Wd..  I.,  784-794. 


60      Constitutional  Beginnings  of  North  Carolina. 

The  social  condition  of  the  people  favored  an  extension  of 
the  authority  of  the  Assembly.  The  Proprietors,  the  Gov- 
ernor and  the  people  all  wanted  peace.  It  was  necessary  to 
have  a  power  strong  enough  to  assure  it.  The  Assembly 
alone  seemed  adequate.  The  Proprietors'  government  was 
just  at  that  time  terrified  before  the  Indian  hostilities.  The 
Lords  were  only  too  glad  to  find  in  the  colony  a  force  strong 
enough  to  bring  harmony  out  of  the  existing  discord. 

The  confidence  of  the  Proprietors  soon  manifested  itself 
in  an  important  way.  It  had  for  some  time  been  a  real  evil 
that  the  laws,  never  having  been  printed,  were  become  so 
confused  that,  except  by  long  and  inconvenient  searching  of 
the  records,  it  was  impossible  to  know  just  what  was  law.  As 
a  relief  for  this  the  inhabitants  asked  that  the  laws  might  be 
codified.  The  Lords  consented,  and  soon  after  the  arrival 
of  Governor  Eden  the  Assembly  took  up  tiie  task  of  making 
what  is  known  as  the  Revisal  of  171 5. 

When  the  student  of  the  constitutional  history  of  North 
Carolina  comes  to  this  point  he  feels  like  expressing  his  relief 
in  a  long-drawn  breath.  He  is  on  solid  ground  at  last.  The 
confusion  which  a  dubious  system  and  meager  records  have 
hitherto  brought  to  him  now  gives  place  to  certainty.  He 
now  has  the  outiine  of  the  government  clearly  set  forth  in 
well  preser\^ed  records.  After  171 5  there  is  no  need  to  com- 
plain of  lack  of  materials. 

The  Assembly  of  171 5,  the  first  called  by  Governor  Eden, 
was  harmoniously  constituted.  The  outcome  of  its  work 
was  fifty-seven  laws,  either  revisals  of  former  enactments  or 
entirely  new  measures.*  Act  fifty-seven  "  repeals  all  former 
laws  not  herein  particularly  excepted."*  The  most  import- 
ant for  us  at  present  is  the  act  relating  to  the  election  of 
members  of  the  "  biennial  and  other  Assemblies."' 


'  These  laws  are  preserved  in  two  excellent  manuscripts  in  the 
State  Library  at  Raleigh.  Titles  of  the  acts,  with  Burrington's 
comments,  are  given  in  Col.  Recs.,  III.,  180-189.  The  important 
acts  of  the  code  are  given  in  full  in  Ibid.,  II.,  pp.  206,  207,  213,  884, 
885,  886,  888  and  889. 

^Ibid.,  III. ,  189.  » Ibid. ,  II. ,  213. 


The  Analysis  of  the  Constitution.  61 

This  act  stipulated  that  the  freemen  of  Albemarle  county 
should  elect  five  delegates  from  each  precinct,  and  that  those 
of  Bath  and  other  counties  should  have  two  for  each  pre- 
cinct They  were  to  meet  at  certain  specified  places  on  the 
first  Tuesday  in  November  of  alternate  years  and  select  their 
delegates  from  the  freeholders.  Foreigners,  mulattoes,  In- 
dians, and  minors  were  not  allowed  to  vote,  and  one  year's 
residence  as  a  rate-payer  was  required  of  all  others.  The 
election  was  held  by  a  marshal,  or  his  deputy,  who  took  the 
deposition  of  all  whom  he  suspected  of  illegal  voting.  Each 
voter  was  required  to  bring  his  written  ballot  subscribed 
by  himself.  Returns  of  the  election  are  not  mentioned,  but 
from  a  later  source  we  learn  that  it  was  the  custom  to  send 
them  to  the  Governor  and  Council.'  Each  officer  who  had 
held  an  election  was  required  to  attend  the  Assembly  during 
the  first  three  days  of  the  session,  in  order  to  be  at  hand  to 
give  evidence  in  contested  election  cases.  The  regular 
Assembly  was  biennial  and  met  on  the  first  Monday  in  No- 
vember at  the  place  of  its  last  meeting— unless  the  Governor 
and  Council  twenty-one  days  beforehand  designated  another 
place.  As  regards  calling,  proroguing  and  dissolving  the 
Assembly,  the  Lords  and  their  agents  were  supreme. 

If  a  representative-elect  did  not  make  his  appearance  by  a 
time  specified  in  the  summons,  he  was  fined  twenty  shillings 
for  each  day  he  was  absent.  The  quorum  of  the  Lower 
House,  here  called  the  House  of  Burgesses,  was  one-half  of 
all  the  members  elected;  but  if  eight  were  met  they  had  the 
right  of  adjourning  from  day  to  day  until  a  quorum  arrived. 
A  bill,  to  become  a  law,  must  be  signed  by  the  Speaker  in 
the  presence  of  seven  of  his  brother-members,  as  well  as  by 
the  Governor  and  a  majorit)'  of  the  Council.  All  special 
Assemblies  were  to  be  chosen  as  in  the  case  of  the  regular 
Assemblies.  This  act,  says  Burrington  in  1731,  "was  an  old 
law  taken  from  the  Lords  Proprietors'  original  constitutions, 
and  hath  undergone  little  alteration '"  in  the  revisal. 


'  Col.  Recs. ,  n. ,  575.  » lUd. ,  III. ,  180. 


G2      Constitutional  Beginnings  of  North  Carolina. 

By  this  time  a  slight  advance  in  its  authority  to  repeal 
laws  seems  to  have  been  made  by  the  Assembly.  In  1716 
the  Proprietors  directed  the  Council  and  the  Assembly  to 
repeal  a  recent  law  by  which  North  Carolina  bills  had  been 
made  payable  for  quit-rents.'  Evidently  the  Lords  had  re- 
linquished the  right  of  repealing  laws  tliemselves,  or  con- 
sidered it  better  policy  to  induce  the  Assembly  to  repeal 
them.  The  distinction  was  \vithout  a  difference,  however; 
for  the  Council  gave  the  directions  the  force  of  law  and  in- 
structed tlie  Receiver-General  to  take  only  English  money. 

So  far  as  the  Assembly  was  concerned  the  administrations 
of  Eden,  Pollock,  Reed,  and  Burrington  (first  term)  were 
quiet  enough ;  but  it  was  otherwise  with  that  of  Sir  Richard 
Everard.  From  the  beginning  there  was  a  contest  between 
him  and  the  legislature. 

In  1725,  the  first  year  of  his  administration,  Everard,  fear- 
ing to  encounter  the  popular  party,  prorogued  the  Assembly 
before  it  had  met.  The  Lower  House  refused  to  recoernize 
the  validity  of  such  a  prorogation,  and  assembling  on  the  day 
originally  set,  proceeded  to  organize  the  House."  All  they 
could  do  brought  no  recognition  from  the  Governor,  Avhose 
action  they  stigmatized  as  illegal.  They  declared  that  at 
their  next  meeting  they  would  transact  no  business  until 
their  privileges  had  been  confirmed  by  the  Governor  and 
Council,  voted  an  address  to  the  Proprietors,  and  then  ad- 
journed till  the  day  for  which  they  had  already  been  pro- 
rogued. On  reassembling,  they  declared  that  they  did  so 
according  to  adjournment,  recognized  the  officers  elected  at 
the  previous  meeting,  and  in  various  other  ways  endeavored 
to  establish  the  legality  of  their  previous  assembling.' 

This  Assembly  (1726)  is  the  first  regular  session  of  whiclt 
we  have  the  journal.  It  will  be  interesting  to  note  here  the 
formalities  by  which  business  was  transacted.  On  the  ap- 
pointed day  the  members  came  together  and  received  the 
election    returns    from    the     Provost-Marshal.     Next    two 

'  Col.  Recs..  II.,  250.         'Ibid.,  II.,  575.         Ubid..  II.,  608. 


The  Analysis  of  the  ConstUutiori.  63 

members  were  sent  to  the  Upper  House  to  inform  them  that 
the  Lower  House  was  met  and  desired  instructions  for  elect- 
ing a  Speaker/  In  •  reply,  the  Upper  House  sent  two  mem- 
bers requiring  the  Lower  House  to  attend  to  receive  in- 
structions. The  inferior  body  then  went  en  masse  and  were 
formally  instructed  to  select  their  Speaker.  They  returned 
to  their  hall,  elected  their  Speaker,  informed  the  L^pper 
House  of  the  fact,  and  signified  their  readiness  to  present 
him.  The  superior  body  repHed  that  they  were  ready  to 
receive  the  person  chosen,  whereupon  the  Lower  House  at- 
tended the  Upper  House  and  formally  presented  tlieir  pre- 
siding officer.  The  Governor  then  addressed  both  Houses 
m  a  short  and  perfunctory  speech,  and  the  Speakers  official 
position  was  considered  established. 

On  returning  to  their  hall,  the  Upper  House  was  informed 
that  the  Lower  House  was  ready  to  receive  the  members  of 
the  Council  who  should  be  sent  to  witness  the  qualification 
of  the  representatives-elect.  Accordingly,  two  Councillors 
were  appointed  for  this  duty.'  The  House  itself,  being  thus 
legally  convened,  then  swore  in  its  own  inferior  officers, — the 
Clerk,  the  Doorkeeper,  and  the  Messenger.  It  next  resolved 
itsell  into  a  Committee  of  the  Whole  on  Propositions  and 
Grievances  to  prepare  an  answer  to  the  Governor's  speech. 
When  ready,  this  answer  was  presented  by  the  Speaker,  who 
was  accompanied  by  the  whole  House.  In  this  session,  when 
the  Governor  and  Council  decided  to  prorogue  the  Assem- 
bly, the  Lower  House  was  summoned  and  the  Governor 
delivered  the  prorogation    in  person.     The   Lower   House 


'It  will  be  seen  that  the  Lower  House  was  in  a  dilemma.  They 
had— and  legally,  as  they  claimed — elected  Maurice  Moore  for 
Speaker.  How  could  they  now  ask  for  instructions  to  elect  a 
Speaker  without  acknowledging  the  illegality  of  that  other  election  V 
Their  solution  of  the  problem  was  adroitly  managed.  Either 
advisedly  or  otherwise,  Maurice  Moore  did  not  appear,  and  they 
immediately  declared  that  his  office  was  vacant,  and  then  proceeded 
to  elect  another  man  for  Speaker  (Col.  Recs. ,  II.,  608). 

*  Some  of  the  Councillors,  it  was  required,  must  witness  the  swear- 
ing-in of  delegates,  and  if  any  delegate  came  late,  other  Councillors 
must  be  sent  for  before  he  could  take  the  oath. 


64      Constitutional  Beginnings  of  North  Carolina. 

considered  this  illegal,  and  instructed  the  Speaker  to  pro- 
nounce the  prorogation,  which  being  done,  they  considered 
themselves  legally  adjourned. 

From  this  Journal  we  gather  some  further  particulars  of 
the  powers  and  constitution  of  the  Lower  House.  It  had  the 
right  to  expel  a  member;  to  decide  contested  election  cases 
involving  membership  in  their  body ;  to  remit  taxes ;  to  send 
for  persons,  papers  and  records,  with  the  object  of  redressing 
grievances;  to  appoint  a  Public  Treasurer;  and  to  pass  money 
bills  without  the  concurrence  of  the  Upper  House,  Each 
member  of  each  House  received  ten  shillings  for  each  day 
that  attendance  on  the  Assembly  kept  him  from  his  home. 

Each  House  had  a  Clerk/  whose  duty  was  to  keep  the 
records  and  to  issue  warrants  for  commitment  at  the  order  of 
the  House.  His  salary  was,  it  seems,  one  pound  a  day.* 
For  extra  work  he  received  extra  pay.  At  this  Assembly 
it  was  enacted  that  the  Clerk  should  have  two  pounds  for 
each  warrant  of  commitment. 

The  Messenger's  regular  duties  are  not  stated.  He  does 
not  seem  to  have  been  the  bearer  of  messages  between  the 
two  Houses,  for  this  duty  was  entrusted  to  members  ap- 
pointed for  that  purpose.  We  are  told  no  more  than  that  he 
executed  the  warrants  of  commitment,  for  doing  which  he 
received  in  each  case  one  pound  for  each  day  during  which 
he  had  the  offender  in  custody.  Besides  these  fees  he  had 
a  regular  salary,  which  was  one-half  as  much  as  that  of  the 
Clerk,  and  which  was  just  equal  to  that  of  the  Doorkeeper. 

We  cannot  close  this  sketch  in  a  better  manner  than  to 
relate  an  incident  which  very  well  illustrates  the  Assembly's 


'The  Secretary  of  the  province  was  regular  Secretary  of  the 
Counril  and  acted  in  the  capacity  of  Clerk  when  the  Council  sat 
as  the  Upper  House. 

*  At  this  Assembly  he  received  twelve  pounds  as  his  regular  salary. 
The  delegates  served  for  thirteen  days,  and  it  is  probable  that,  inas- 
much as  the  Clerk  took  office  on  the  second  day — being  elected  on 
the  first — he  served  for  twelve  days.  This  would  make  his  sa'ary 
a  pound  a  day.  This,  as  well  as  other  salaries,  it  must  be  remem- 
bered, was  in  colonial  bills,  which  were  then  depreciated  to  one- 
fourth  of  their  face  value  in  English  money. 


The  Analysis  of  the  Constitution.  65 

jealousy  of  its  privileges,  its  lack  of  the  knowledge  of  its 
limitations,  and  its  naive  candor  in  recognizing  and  correct- 
ing its  mistakes.  It  seems  that  one  John  Richards  had  been 
imprisoned  by  the  Provost-Marshal  on  the  verbal  order  of 
Chief  Justice  Gale,  although  a  mittiinus  was  obtained  the 
next  day.  The  case  being  brought  before  the  Lower  House 
on  petition  from  Richards,  that  body  declared  the  commit- 
ment illegal  and  ordered  the  Provost-Marshal  to  relinquish 
the  petitioner.  Now,  Richards,  being  no  member  of  the 
House,  this  order  was  beyond  the  privileges  of  that  body,  as 
the  members  were  made  to  see  on  the  very  next  day.  In- 
stead of  devising  some  ingenious  bill  which  would  cover  its 
retreat  from  an  untenable  position,  the  House  frankly  ac- 
knowledged that  it  had  no  power  to  release  from  custody 
any  one  not  its  own  member,  repealed  tlie  previous  order,  and 
seemed  to  have  thought  its  dignity  none  the  worse  for  its 
mistake. 

Section  v. —  The  Judicial  System.         • 

The  judicial  system  embraced  the  General  Court,  the  Pre- 
cinct Courts,  the  Court  of  Chancery,  the  Admiralty  Court, 
and,  in  a  manner,  the  Council. 

T/ie  General  Court. — Until  the  arrival  of  the  temporary 
constitution  of  1670  the  only  tribunal  in  the  colony,  so  far  as 
we  know,  was  held  by  the  Governor  and  Council.  This  is 
indicated  by  a  law  signed  by  the  Lords  Proprietors,  January 
20,  1670,  which  granted  the  "  Governor  and  Council  in  time 
of  court "  thirty  pounds  of  tobacco  for  each  action,  to  be  paid 
by  "  him  that  is  cast."'  The  Concessions  of  1665  had  granted 
to  the  Assembly  the  authority  to  create  the  courts  that  should 
be  found  necessary,  but  had  left  the  appointment  of  judges 
and  other  officers  to  the  Governor  and  Council.'  In  the 
sparsely  settled  territory  of  the  infant  colony  one  court  seems 
to  have  been  thought  sufficient  for  all  causes.  It  seems  to 
have  combined  in  itself  the  jurisdiction  in  law  and  in  chan- 
cery as  well  as  in  criminal  cases. 

'  Col.  Recs. ,  I. ,  1 85.  '  75td. ,  I. ,  82,  84. 


66      Constitutional  Beginnings  of  North  Carolina. 

The  temporary  constitution  gave  the  power  of  establish- 
ing courts  to  the  Governor  and  Council/  who,  however, 
made  no  change  in  the  court  they  had.  The  growth  of  the 
colony  had  necessitated  the  erection  of  Precincts,  or  districts 
of  representation  in  the  Assembly.  It  was  consequently  a 
part  of  the  same  process  to  make  these  Precincts  the  terri- 
torial bases  of  local  courts.  Here  then  was  a  differentiation. 
The  older  tribunal  was  now  knowTi  as  the  General  Court, 
and  became  the  appellate  court  of  the  colony,  the  protot^^pe 
of  the  present  Supreme  Court  of  the  State. 

This  court  was  held  by  the  Governor  and  the  Deputies 
until  near  the  end  of  the  centur}-.  In  1685  tlie  Proprietors 
concluded  that  it  would  be  better  to  take  the  trial  of  causes 
out  of  the  hands  of  these  officers.  Accordingly,  the  Gov- 
ernor was  ordered  to  appoint  four  discreet  men  "  to  be  Jus- 
tices of  the  County  Court  of  Albemarle."  He  was  also  to 
appoint  a  Sheriff/  who,  with  the  justices,  was  to  hold  the 
General  Court.  The  Governor  and  Council  were  to  be  a 
court  to  hear  complaints  against  these  new  justices.'  When 
in  1691  the  Proprietors  remodeled  their  form  of  government 
this  new  feature  was  incorporated  into  it*  and  continued  there 
throughout  the  Proprietary  period.  Like  many  other  orders 
of  the  Lords,  this  one  was  not  put  into  execution  until  long 
after  it  was  issued.  As  late  as  1695  the  General  Court  w-as 
held  by  the  Governor  and  Deputies,'  and  it  is  only  in  1702 
that  we  know  that  the  new  system  was  in  use."  The  loss  of 
court  records  between  these  tw'o  dates  makes  it  impossible  to 
say  whether  or  not  the  change  was  earlier  than  the  latter 
year.  We  only  know  that  in  this  year  Samuel  Swann,  Wil- 
liam Glover,  and  John  Hawkins,  sitting  by  virtue  of  a  dci/i- 
vius  from  the  President  of  the  Council,  held  the  General 
Court.' 


'Col.  Recs..  I.,  182. 

'This  use  of  the  term  "Sheriff"  recalls  the  time  when  the 
English  Sheriff  was  a  judicial  officer ;  here  it  simply  meant  chief 
judge,  and  had  no  administrative  significance. 

2 Col.  Recs..  I.,  351.  '•JWd.,  I.,  375.  *76id.,  I.,  442. 

«IWd.,  I..  566. 

'In  1694  and  1695  the  Governor  and  Deputies  sat  with  one  or  two 
"assistants. "  These  were  perhaps  men  who  were  better  acquainted 
with  the  law  of  the  colony  than  the  former  officers,  and  were  chosen 
to  advise  on  technical  points.  We  hear  nothing  of  them  in  this 
capacity  after  this  date  (cf.  Col.  Recs.,  I.,  pp.  405.  442). 


The  Analysis  of  the  Constitution.  67 

The  next  step,  and  the  last  for  us,  was  taken  in  171 3,  when 
one  of  the  Justices  was  made  a  Chief  Justice,  with  a  com- 
mission directly  from  the  Proprietors/  Christopher  Gale, 
one  of  the  most  remarkable  of  North  Carolinians,  became  in 
that  year  the  Chief  Justice,  although  his  commission  did 
not  arrive  until  one  and  a  half  years  later.  He  was,  it  seems, 
the  first  to  hold  the  office/  The  number  of  his  associates' 
varied.  In  171 3  it  was  t\vo,  in  1716  ten,"  in  1724  two,*  and 
after  other  changes  it  became  about  eight." 

The  Associate  Justices  were  equal  in  authority  with  the 
Chief  Justice.'  In  1716  it  took  two  Associates  to  transact 
business  in  the  presence  of  the  head  of  the  court,'  and  in 
1 718  it  was  ordered  that  no  court  could  be  held  without 
this  dignitar)',  and  that  when  all  were  present  a  majority 
was  to  decide.'  The  court  met  three  times  a  year.'  In  the 
early  part  of  that  century  it  was  allowable  for  a  Justice  to 
come  do^vn  from  the  bench  in  order  to  represent  a  client 
before  the  court,"  but  in  the  Revisal  of  171 5  there  is  a  law 
which  forbids  this,  in  either  the  General  or  the  Precinct 
Court." 

The  authority  of  the  General  Court  was  derived  from  two 
commissions.  Under  one  it  had  the  power  of  the  courts  of 
King's  Bench,  Common  Pleas,  and  Exchequer:  under  the 
other  it  was  a  General  Session  of  the  Peace,  and  a  Court  of 
Oyer  and  Terminer,  and  Gaol  Deliver>-."     The  members  of 

'Col.  Recs.,II.,80. 

in^^7^\lil'\'^u\^\^^^  Moseleyas  the  first  Chief  Justice,  hold- ■ 
ing  from  1  <  07-1711,  but  mentions  no  authority  for  the  statement 
»Col.  Recs.,II..264.  ■'76/d.,  II..  525,  551.  'Ibid, 11    570 

•When  the  Royal  Governor.  Burrington,  was  disputing  with  the 
Assembly  on  this  point,  that  body  claimed  that  the  powers  of  the 
Assistants  were  not  equal  to  those  of  the  Chief  Justice     They  based 
their  claim  entirely  on  a  clause  in  the  king's  letter  of  instructions 
«  H'%r'^'°' V?^  ''  '^''^  ^'^^  ^"^^'^  °f  a  custom  to  sipport  thefr 
caHon  n>  r"^K  ^'^^^  "}«"tioned  it.     The  failure  to  do  so  is  an  nd 
cation  of  the  absence  of  the  custom  (Col.  Recs    III     169-175) 
'76id..II.,  264.  ' 

rol^'^^^yiT^  *^'^  change  was  made  in  1718  it  does  not  seem  to  have 
reached  the  colony  until  1724.     Ibid.,  II.,  299,  525  551 
'Ibid..  II..  265.  'o/6^•d.,  I.,  590.  592.     '    "  '^^Ibid.,  Ill     181 


68      Constitutional  Beginnings  of  North  Carolina. 

the  Council  and  other  "  principal  officers  "  had  general  com- 
missions of  the  peace.^  This  gave  them  the  right  to  meet 
with  the  General  Court  when  it  sat  by  virtue  of  the  latter 
commission;  but  the  court  records  show  that  they  very  sel- 
dom availed  themselves  of  this  privilege. 

From  the  General  Court  there  was  an  appeal  to  the  king. 
This,  however,  was  of  little  consequence  on  account  of  a 
royal  instruction  of  1689,  forbidding  the  Governors  to  allow 
appeals  for  cases  involving  a  less  sum  than  ^500.*  This,  to- 
gether with  the  inconvenience  and  expense  of  taking  wit- 
nesses to  England  and  the  delay  in  the  English  courts,  re- 
duced appeal  to  a  practical  nullity.  We  have  no  record  of 
an  appeal  during  the  Proprietary  period.' 

The  General  Court  had  certain  non-judicial  functions.  It 
could  regulate  fares  at  ferries  and  appoint  ferr\-men,'  direct 
the  repairing  of  roads/  and  by  the  direction  of  the  Assembly 
it  apportioned  taxes  and  ordered  the  payment  of  tlie  public 
indebtedness.' 

The  executive  officer  of  the  General  Court  was  the  Sheriff, 
or  Provost-A'Iarshal.  These  two  terms  are  found  side  by 
side  in  the  early  histor}-  of  the  colony,  but  by  the  eighteenth 
century  the  latter  is  found  exclusively  as  the  official  title, 
although  "Sheriff"  is  still  met  in  common  use.  The  ap- 
pointment to  this  office  was  made  regularly  by  tlie  Governor 
and  Council.  Both  Albemarle  and  Bath  counties  had  Pro- 
vost-Marshals, although  there  was  no  General  Court  in  the 
latter.  In  the  closing  years  of  their  regime  the  Proprietors 
themselves  appointed  one  Provost-Marshal  for  the  whole 
colony,'  This  was  of  but  little  consequence,  however,  for 
Bath  count}',  by  an  especial  arrangement,  was  allowed  to 
keep  its   distinct  officer.* 

Besides  executing  the   orders  of  the  General  Court,  the 


'Col.  Recs.,  II..  526,  556.  'Ibid..  II..  p.  161. 

'At  one  time  the  General  Court  decided  that  there  was  no  right 
of  appeal  from  its  decisions  to  the  king  (Hawks,  II.,  207-9). 
«Col.  Recs..  II.,  475.  'Ibid.,  II.,  470.  ^Ibid..  I..  429. 

'Ibid.,  II..  569.  'Ibid.,  II.,  606. 


The  Analysis  of  the  Constitution.  69 

Provost-Marshal  summoned  juries,  which  were  drawn  after 
the  English  fashion  ;^  appointed  his  deputies,  who  did  for  the 
Precinct  Courts  what  he  himself  did  for  the  central  tribunal,* 
and  at  the  direction  of  the  Council  notified  the  members, 
through  his  deputies,  when  a  call  had  been  issued  for  the 
convening  of  an  Assembly.'  He  also,  through  his  deputies, 
held  the  election  for  the  members  of  the  Assembly,*  and  exe- 
cuted the  commands  of  the  Council  when  it  sat  as  a  court 

The  General  Court  also  had  a  Clerk.  His  duties  were 
merely  those  of  a  scribe.  He  was  appointed  by  the  Chief 
Justice,'  and  his  remuneration  was  derived  from  fees. 

The  earliest  Attorney-General  of  whom  we  have  informa- 
tion was  George  Durant,  who  held  the  office  in  1679.'  The 
oflfice  continued  until  1729,  although  we  have  but  slight 
mention  of  it  before  171 3.'  It  seems  to  have  been  con- 
trolled by  the  Governor  and  Council  under  their  general 
authority  to  appoint  court  officers. 

T/ie  Precinct  Court. — This  court  was  held  by  several  jus- 
tices of  the  peace, — there  was  no  fixed  number, — who  were 
appointed  by  the  Governor  and  Council.'  One  of  the  num- 
ber was  the  Chairman,  or,  as  he  was  at  times  called,  the 
Judge.*  They  held  frequent  courts,  Perquimans  having  in 
1703  seven  in  each  year.*"  There  being  no  court-houses  in 
the  colony,  the  court  met  until  after  1722  at  the  residence  of 
some  conveniently  situated  planter." 


'  Col.  Recs.,  I.,  412.     *7Wd..  I.,  791-2.    »/6id.,  II..  460  and  516-7. 

*Ihid..  II..  214,  215.  *76irf..  III..  201.  *76td.,  I..  313. 

'In  1696  Edmund  Randolph  said  that  there  was  no  Attorney- 
General  in  North  Carolina,  but  he  seems  to  have  referred  to  an 
oflBcer  of  the  Admiralty  Court,  the  one  that  was  afterward  called 
the  Advocate.  At  any  rate  we  know  that  there  was  an  Attorney- 
General  in  North  Carolina  in  1694,  cf.  Ihid..  I.,  438. 

"Dr.  Hawks  (vol.  II.,  p.  194,  but  see  Ih..  189)  is  inclined  to 
think  that  in  1711  it  was  wholly  inherent  in  the  Governor  to  ap- 
point the  Justices  of  the  Peace.  But  in  1703  tlie  commissions  for 
Perquimans  Precinct  were  signed  by  the  Governor  and  Council, 
and  later  on  there  is  abundant  evidence  that  this  was  the  regular 
method  (cf.  Col.  Recs.,  I.,  574,  and  II.,  526,  570). 

'Col.  Recs..  I.,  522,  531,  and  II.,  725. 

'"/Wd.,  I.,  574,  575.  "  Ibid.,  III.,  191. 


70      Constitutional  Beginnings  of  North  Carolina. 

The  Precinct  Court  had  jurisdiction  over  all  civil  suits 
under  fifty  pounds,  and  fulfilled  the  function  of  the  English 
Orphans  Court.  It  also  had  some  non-judicial  business. 
Owing  to  the  late  introduction  of  the  parish,  it  received  many 
of  the  duties  which  in  England  were  in  the  hands  of  the 
vestry,  and  which  in  New  England  were  left  to  the  Select- 
men. It  was  the  unit  of  local  government  in  North  Caro- 
lina. It  cared  for  highways,  creating  road  districts  and  ap- 
pointing overseers  for  them,^  appointed  constables,'  granted 
franchises  for  building  mills,  gave  permission  to  build 
bridges,  and  authorized  the  opening  of  new  roads.*  With 
the  Clerk  was  recorded,  in  open  court  usually,  the  marks  by 
which  the  settlers  distinguished  their  cattle  and  hogs.* 

The  officers  of  the  Precinct  Court  were  the  Marshal  and 
the  Clerk.  The  former  executed  the  orders  of  the  court  and 
was  the  deputy  of  the  Provost-Marshal.  The  duties  of  the 
latter  were  merely  clerical,  and  he  seems  to  have  been  ap- 
pointed by  the  Secretary  of  the  Province." 

The  Court  of  CJiancery. — ^When  the  Proprietors  took  the 
General  Court  out  of  the  hands  of  the  Governor  and  Council 
they  did  not  carry  with  it  the  chancery  jurisdiction  which 
they  had  formerly  lodged  there.  This  court  continued  to  be 
held  by  the  Governor  and  Council  till  the  end  of  the  Pro- 
prietary period." 

The  Admiralty  Court. — This  court  v/as  instituted  to  en- 
force the  acts  relating  to  trade.  It  was  an  extension  of  the 
English  Admiralty  Court,  whose  powers  it  had  in  local  mat- 
ters. Previous  to  1698  all  affairs  that  would  rightly  have 
come  under  its  cognizance  were  by  an  act  of  15  Charles  II. 
left  to  the  common  law  courts.'  In  this  year,  however,  North 
Carolina  was  attached  to  Virginia  for  this  purpose  and  one 
tribunal  was  made  to  serve  the  two  provinces.'    This  ar- 


'Col.  Recs.,  I..  493.    The  General  Court  in  a  few  instances  are 
known  to  have  appointed  road  overseers  (cf.  76.,  II.,  261). 

* /bid..  I.,  486,  493.  = /bid..  I.,  531,  533.  •*/&id.,  I.,  388. 

"lUd.,  I.,  574.  «76i(i.,  III.,  150,  197.  Ibid.,  I.,  471-3. 

«Jbtd.,I.,490-l,  510. 


The  Analysis  of  the  Constitution.  71 

rangement  did  not  last  long,  and  early  in  the  succeeding  cen- 
tury the  colony  had  its  own  Admiralty  Court. 

The  officers  of  this  court  were  a  Judge,  a  Register,  a  Mar- 
shal, and  an  Advocate.  They  were  appointed  by  the  Ad- 
miralty Court  in  England/  to  whom  they  were  obliged  to  re- 
port,^ but  vacancies  were  temporarily  filled  by  the  Governor 
and  Council." 

T/ie  Council  as  a  Court. — Besides  being  for  a  long  time 
the  General  Court,  and  continuing  to  sit  as  the  Court  of 
Chancery,  the  Council  had  certain  other  judicial  functions. 
Wills  were  proved  before  it,*  and  executors'  accounts  re- 
turned to  it."  It  could  divide  lands,  and  at  times  heard 
charges  against  citizens."  It  tried  officers  for  misconduct 
in  office,'  and  we  occasionally  find  it  binding  over  to  the 
General  Court  persons  charged  with  ordinary  offenses.* 


Section  vi. — Finances. 

There  were  three  sets  of  fiscal  officers  in  North  Carolina; 
(i)  The  Collectors  of  the  Customs,  (2)  tlie  Receiver-General 
and  his  deputies,  and  (3)  the  Public  Treasurer.  The  first 
collected  the  import  duties  for  the  king.  He  was  appointed 
by  the  Surveyor-General  of  His  Majesty's  Revenues  in  the 
Southern  District'  of  America.  The  second  collected  the 
quit-rents,  and  was  appointed  by  the  Proprietors.  The  third 
received  the  taxes  levied  by  the  Assembly  and  collected,  as 
it  seems,  by  the  Precinct  Marshals."     He  was  elected  by  the 


'Col.  Recs.,  I..  632.  «76id.,  II.,  762. 

'76id.,  I.,  491,  and  II.,  520,  765. 

*Law8  of  1715,  Ch.  48.  *Col.  Recs.,  II.,  493-4. 

•Ibid.,  I.,  376,  855. 

'Cf.  the  trial  of  Tobias  Knight.     J6.,  II.,  341-349. 

«76id.,  II.,  56,  59.  »  76td.,  I.,  842-3. 

'"There  is  mention  in  the  records  of  1713  and  1714  of  a  Precinct 
Treasurer  (7t>.,  II.,  66,  124).  This  may  have  meant  the  Precinct 
Marshal  or  it  may  have  indicated  a  distinct  officer.  There  is  not 
enough  evidence,  however,  to  warrant  the  statement  that  such  an 
officer  continued  for  any  considerable  time.  While  he  d  id  exist,  he 
paid  out  moneys  at  the  order  of  the  Assembly  and  appeared  in  every 
sense  a  true  treasurer.     (See  also  76.,  III.,  p.  151.) 


72      Comtitutional  Beginnings  of  North  Carolina. 

Lower  House  of  the  Assembly  and  to  that  body  was  respon- 
sible. He  was  always  looked  upon  as  a  most  important  bul- 
wark of  popular  liberty.  The  office  was  doubtless  of  early 
origin,  but  it  first  comes  into  notice  early  in  the  eighteenth 
century.^  All  direct  taxes  of  the  colonial  government  were 
poll  taxes,  and  were  levied  upon  white  adult  males  and  col- 
ored adult  males  and  females,  bond  and  free. 


Section  vii. — Miscellaneous  Officers. 

The  Register. — This  officer  vra&  in  existence  in  the  colony 
from  the  first.  One  of  the  laws  of  171 5  (ch.  38)  provided 
that  he  should  be  appointed  by  the  Governor  from  three 
freeholders  who  should  previously  have  been  selected  by 
the  voters  in  the  precinct;  and  this  was  doubtless  the  method 
from  the  first*  Thus  there  was  a  popular  element  in  the 
selection  of  Registers.  The  duties  of  the  Register  were 
registering  deeds,  which  were  often  for  personalty,  and  were 
usually  acknowledged  in  the  precinct  courts,  and,  until  the 
appointment  of  parish  clerks,  the  recording  of  births,  mar- 
riages, and  deaths. 

Constables. — These  were  appointed  by  the  Precinct  Courts. 
To  each  was  assigned  a  district,  there  being  several  in  each 
precinct.  Besides  the  usual  duties  of  constables,  they  made 
lists  of  the  tithables  for  the  use  of  the  vestr}','  and  sum- 
moned the  coroner's  jury.  The  slight  mention  of  the  office 
in  the  records  would  seem  to  indicate  its  small  importance. 

The  Coroner. — The  Concessions  of  1665  provided  for  this 
officer.  Then  he  was  appointed  by  the  Govenior  and  Coun- 
cil, and  a  law,  which  Burrington  pronounces  an  old  one,  in 
the  Revisal  of  171 5,*  shows  that  this  method  was  retained 
throughout  the  Proprietary  period. 


'Col.  Recs.,  III..  151. 

*The  Fundamental  Constitutions  provided  that  he  should  be 
appointed  by  the  Chief  Justice's  Court  from  three  men  selected  by 
the  freeholders.  As  the  Governor  and  Deputies  held  this  court,  it  is 
likely  that  they  took  their  idea  from  the  Constitutions,  and  thus 
introduced  the  method  which  was  embodied  in  the  Revisal  of  1715. 

■Ibid.,  I.,  830.  ■•Laws of  1753.  pp.  2,  3. 


The  Analysis  of  the  Constitution.  73 

The  Secretary  of  the  Co/ony.— The  Proprietors  always 
appointed  this  officer,  whose  duties  were  chiefly  clerical. 

T/ie  Naval  Officer. — This  dignitary  was  appointed  by  the 
Governor  at  first*  and  later  on  by  the  Lords.*  His  duty  was 
to  "  clear  "  vessels  and  to  perform  other  similar  functions  at 
the  ports.  By  7  and  8  William  III.  he  was  required  to  give 
bond  to  the  Collector  of  the  Customs  for  the  due  perform- 
ance of  his  duties.* 

Surveyors. — Lands  were  laid  out  either  by  the  Surveyor- 
General  or  his  deputies,  one  of  the  latter  being  in  each  pre- 
cinct. These  were  appointed  primarily  to  survey  public 
lands,  at  that  time  an  important  function.  At  first  the  Sur- 
veyor-General was  appointed  by  the  Proprietors,*  and  he 
appointed  the  Deputies,"  but  later  on  both  were  named  by 
the  Governor  and  Council." 

The  Escheator. — ^The  Proprietors'  right  to  tenure  involved 
the  right  of  escheat.  Property  escheated,  as  in  England,  for 
failure  of  heirs,  and  for  conviction  of  felony.  When  lands 
were  thought  to  be  escheatable  the  Escheator,  or  his  deputy, 
called  a  jury,  who  took  evidence  to  find  if  there  were  any 
heirs.'  No  heirs  appearing  in  the  colony,  it  was  held  that 
there  were  none  in  existence.  The  Escheator  seems  to 
have  beeri  appointed  by  the  Governor  and  Council. 

'Col.  Recs.,  I.,  492,7.  *Ihid.,  II.,  497.  »7&id.,  I.,  497. 

«75id.,  I.,  73,  211.  »76td.,  I.,  728.  •IMd.,  I.,  872. 

'7Wd.,II.,305. 


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In  Jjiuuary.  l.^Sd,  the  journal  ha^i  been  repeatedly  enlarged,  and  has  met  with  constantly 
Increasing  encuiTigemeut  and  success.  The  wide  ranje  of  its  articles,  original,  critical, 
literary  and  pedagoirical,  by  a  number  of  the  foremost  American  and  European)  scholars, 
has  well  represented  and  recorded  the  recent  progress  of  modern  language  studies,  both 
at  home  aud  abroad. 

The  list  of  contributors  to  MODEBX  LJOfGUAGE  NOTES,  In  addition  to  the  Editors, 
includes  the  following  names: 

AXDEKsos,  MELVILLE  B.,  State  University  of  Iowa;  Bancroft,  T.  WHrrrSG,  Brown 
University,  K.  I  ;  Uaskeuvill,  W.  M.,  Vauderbllt  University.  Teun. ;  BOCHEE,  Ferdoaxd, 
Harvard  Univetsliy,  Mas*. ;  Bradlet.  C.  B..  University  of  California,  Cal. ;  Braxdt,  H.  C. 
G.,  Hamilton  Collece,  N.  Y. ;  BuowxE,  Wsi.  Haxd.  -Johns  Hopkins  University,  Md.  ;  BURX- 
HAM.  Wll.  H., -Johns  Hopkins  University.  Md. ;  CABPEXTER,  WM.  H.,  Columbia  College, 
N-  Y. ;  Cledat,  L.,  Faculty  des  Lef.res.  Lyons.  France;  COHX,  ADOLPHE.  Harvard  Univer- 
sity, Mass. ;  Cook,  a.  S.,  Yale  University;  CosiJX,  P.  J.,  University  of  Leydeu,  Holland ; 
CUANE,  T.  F.,C'jrueli  University,  N.  Y. ;  Davldsox,  Thomas,  Orauge,  X.  -J. ;  Egge.  ALBEbt 

E.  St.  Olafs  College.  Minn.;  FAY,  E.  A..  National  Deaf-Mute  College.  Washington,  D.  C. ; 
FORTIER,  Alc'ee.  Tulane  University,  La.;  Gabxer,  Samcel,  U.  S.  Xaval  Academy; 
Geuber,  A  ,  Earlham  College,  Ind. ;  Gbaxdgext,  Chables,  Harvard  University,  Mass.; 
GUMMEKE.  F.  B..  The  Swain  Free  School,  Mass.;  Habt,  J.  M.,  University  of  Cincinnati, 
Ohio;  Hempl,  Geo..  University  of  Michigan;  Hrss.  H.  C.  0.,  Princeton  O^llege,  X.  J. ; 
VOX  Jagemaxx.  H.  C-  G.,  Harvard  University;  Earstex.  Gustaf,  University  of  Indian.'*, 
Ind. ;  LaXG,  Hexuy  R  ,  The  Swain  Free  School,  Mass. ;  Leaexed,  M.  D.,  .lohns  Hopkins 
University.  M.I.;  Leth,  Edw.  F.,  Baltimore,  Md. ;  Lodejiax,  a..  State  Xormal  School, 
Mich. ;  Mobfill,  W.  R..  Oxford,  England ;  MCCabe,  T  ,  Jobns  Hopkins  University,  Md. ; 
McElboy,  lOHX  G.  R.,  University  of  Pennsylvania,  Pa.;  OCoxxou.  B.  F.,  Colunibia  Col- 
lege, X.  Y. ;  PuniEi!.  Sylvester,  Providence,  R.  I.;  Schele  De  Vere,  M.,  University  of 
Virginia.  Va. ;  SCHlLLiXrt,  HCGO.  Wittenberg  College,  Ohio;  SHELDON.  Edw.  S.,  Harvard 
University,  Mass.  ;  Shephekd,  H.  E,  College  of  Charleston.  S.  C. ;  SCHMIDT.  H.,  Univer- 
sity of  Deperet,  Salt  L-tke  City,  Utah;  SIEVERS,  EDCAUD,  University  of  Tilblngen,  Ger- 
many;  Sm^th.  a.  H.,  High  School  of  Phlladephla,  Pa. ;  Stoddabd,  Fbaxcis  H.,  University 
of  City  of  xew  York;  STt'uznfOER.  J.  i.,  Bryn  Mawr  College,  Pa.;  Thomas,  Calvix, 
University  of  Mi.hlgan.  Mich. ;  Walter.  E.  L.,  University  of  Michigan,  Mich. ;  Wabbex. 

F.  M.,  Johns  Hopkins  University,  Md. ;  WHITE,  H.  S.,  Cornell  University,  X.  Y. 

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